1996 Telecom Act Couldn't Happen in Today's Political Climate, Many Say
The 1996 Telecom Act couldn't happen in 2016, but a major rewrite doesn't seem needed either, numerous architects and implementers of the legislation said in interviews and on a pair of panels Thursday. "It's hard to imagine it being done today in the current political climate," said NCTA CEO Michael Powell at an FCBA luncheon for the act's 20th anniversary. "I don't think the political machinery is functioning all that well. It's hard to imagine the navigation process ... that would produce something more rational or sound" than the 1996 act, he said. Other panelists, a slew of online statements and the industry's law journal made similar observations this week (see 1602080062 and 1602090048).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Former House Commerce Committee Chairman Tom Bliley, R-Va., at a gathering of House and Senate architects of the 1996 act, said he wished the spirit of negotiation that led to the act still existed on Capitol Hill. “I wish we could get that through the heads of the people across the street,” said Bliley, now at Steptoe & Johnson. He said Congress thinks “the only way to get things done is to stand on one side of the room and shout at the other side.”
Congress could -- and has -- made some changes to the Telecom Act, such as the 2014 Satellite Television Extension and Localism Act Reauthorization, Powell said. "It's not like smaller issues don't get brought up to them on occasion," he said. "So far, there's been enough play in the joints you can get some kind of resolution at the FCC or another government agency." But he said limits on the act "are becoming frayed."
The FCBA event crowd of more than 250 included FCC Commissioners Michael O'Rielly and Jessica Rosenworcel. Powell, a former FCC chairman, also was author of an essay on the act in the February issue of the Federal Communications Law Journal, which had many other such pieces. In both his essay and his talk, he said the biggest virtue of the 1996 act was its rejection of the long-held view that communications services were natural monopolies and regulation should support the existence of one heavily regulated provider. While part of the 1996 act involved "trying to untangle the long and twisted history of AT&T ... it [also] had an eye on the future" by setting up the principles regulators use today when looking at Internet issues, he said. "We've forgotten how structured and limiting it was [prior to the act]. It was so successful in certain ways, we take it for granted today," he said, citing the significant wireline phone market share held by cable companies.
The act is “a set of instructions” to put consumers and competition first, said FCC Chairman Tom Wheeler at the Library of Congress DC20 anniversary event. Communications lawmakers can’t predict the future of telecom now any better than they could 20 years ago, Wheeler said. “We are assembling a jigsaw without benefit of the picture on the top of the box,” he said. “It established ground rules whereby new entrants could challenge incumbents. We must continue these policies.”
The 1996 act was called a guidepost for future telecom regulation by several DC20 speakers, including Sen. Ed Markey, D-Mass. “People today say it needs to be updated,” said Markey, but the legislation is a model for communications laws, and was “the future in 1996, is the future today, and will be the future tomorrow.” Markey conceded the act wasn’t perfect, as did Colin Crowell, Twitter vice president of global policy, and former House Telecom Subcommittee Chairman Jack Fields, R-Texas. “Has the act been perfect? The answer is no, but it lasted 20 years,” Fields said. “I think it lasted 20 years because we got some things right.”
The Telecom Act was a qualified success, Powell said. Companies that had major monopolies before the act now generally have fairly modest market shares, he said. But he said it fell short in one key area that should have been looked at -- questioning the very existence of the FCC and why some markets are subject to regulation. Rewriting the 1996 act also might be somewhat beside the point, Powell said, since companies such as Amazon, Facebook and Google are driving most communications policy today.
Though numerous legislators referred to the act as among the most important pieces of legislation they worked on, many acknowledged they hadn’t foreseen its far-reaching effects. Lawmakers didn’t predict “Fitbits, Snapchat, and Facebook,” said former Senate Commerce Committee Chairman Larry Pressler, R-S.D. “Even as I look around, I can see people looking down not even paying attention to me and I’m really proud of that,” said Markey of an audience member using a smartphone. “Maybe we can reach a day where no young person ever looks up again.”