Communications Act Overhaul Underway ... Sort of [telecom]

By Howard Weiss, CommLawBlog, January 11, 2014 by Howard Weiss

| Commerce, Communications Committee chairmen seek public input | on fundamental questions about federal regulation of | communications. | | It's generally acknowledged that the Communications Act -- | first enacted four score years ago and not substantially | updated in nearly 20 years -- is ill-suited for regulation of | the 21st Century communications landscape. And now two well- | placed members of Congress have announced the start of an | effort to update the Act and perhaps restructure the FCC | itself. | | Given the prominence of the folks making that announcement, | anyone subject to the FCC's regulatory reach should pay | attention. But before you get overcome with visions of | sweeping change just around the corner, it's important to | temper your expectations with a healthy splash of reality: any | significant change to the Act that may occur isn't likely to | happen in the immediate future, if at all. | | The two gentlemen responsible for the latest initiative are | Fred Upton (R-MI) and Greg Walden (R-OR), the Chairs of, | respectively, the House Energy and Commerce Committee and that | Committee's Communications and Technology Subcommittee. You | can see them explain their plans in a 13-minute video posted | von the Committee's website. To summarize: Noting that (a) the | FCC first opened its doors in the Great Depression and (b) the | last time the Act was amended, 56 kb/s by dial-up modem was | the state of the art, Upton and Walden sensibly feel that it's | time to talk about an update. | | The emphasis, though, is more on the "talk" part than the | "update" part.


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Well, I can think of a few things for Upton and Walden to consider.

First off, Congress should coordinate (or merge) the laws governing telephone and cable TV networks. Under current law, telcos are regulated under Title II of the Communications Act, but CATVs are regulated under Title VI. Yet the two industries have been invading each other's markets for years, and their product lines are becoming increasingly similar. Furthermore their differing distribution technologies -- coax v. copper wires -- are merging as both industries deploy fiber optic distribution networks.

Secondly, Congress should address the retransmission-consent issue. It's certainly no secret that retrans-consent battles have been the source of numerous broadcast-signal shutdowns resulting from the failure of broadcast licensees and MVPDs (CATV, telco, satellite) to reach agreements. Speaking as an ex-cable guy, I'd like to see the entire retrans mechanism repealed outright. But failing that, Congress might consider other procedures to avoid shutdowns. The most obvious is contained in the Video CHOICE (Consumers Have Options in Choosing Entertainment) Act sponsored by Representative Anna G. Eshoo (D-CA) [1]. Alternatively, Congress might consider mandatory arbitration or a special court.

Finally, no matter which side wins in the current Aereo case, the losing side is likely to petition Congress to address the underlying issue: the right of a third part to retransmit the signal of a broadcast station over the internet. As I've noted before in this space, the Aereo battle bears a remarkable similarity to the copyright battle that the CATV industry fought fifty years ago [2]. CATV won that battle, but its win wasn't based on the merits of the case. It was based on the then-current law -- the Copyright Act of 1909 -- which didn't say anything about television. Although this case is a matter of copyright law, not communications law, the underlying arguments are closely related to communications law.

[1] "Eshoo Releases Draft Bill to Address TV Programming Pitfalls." By Anna Eshoo, September 9, 2013.
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[2] "As Aereo threatens to alter TV landscape, major networks promise a fight." By Neal McLain, April 10, 2013.
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Neal McLain

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Neal McLain
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