Academic journal article Federal Communications Law Journal

Looking Backwards and Looking Forwards in Contemplating the Next Rewrite of the Communications Act

Academic journal article Federal Communications Law Journal

Looking Backwards and Looking Forwards in Contemplating the Next Rewrite of the Communications Act

Article excerpt

  I. INTRODUCTION
 II. THE CO-EVOLUTION OF LAW, TECHNOLOGY, SECTOR
     ORGANIZATION, AND PERFORMANCE
III. THE INCOMPLETE CONCEPTUAL FOUNDATIONS FOR
     REGULATORY REFORM
     A. Unbundling
     B. Tradeoffs Between Economic and Noneconomic Goals in
        Media Policy
 IV. IMPLICATIONS FOR A REDESIGN OF COMMUNICATIONS LAW
     A. Rethinking the Role of Communications Policy, Law, and
        Regulation
     B. From Outcome to Process-Oriented Policy
  V. WAYS FORWARD

I. INTRODUCTION

The industries and infrastructure supporting an era of ubiquitous and relatively low cost communication came of age in the twentieth century. For nearly two-thirds of that century, the regulatory framework governing the communication industries was set by the Communications Act of 1934 ("1934 Act"). The framework for regulation created by the 1934 Act reflected both the early United States experience with the telephone and broadcast technologies of that era and the prevailing regulatory philosophy of the time, which viewed government as a corrective for the failures of communication markets prone to monopolization. (1) By the early 1980s, as the 1934 Act was approaching its half-century mark, there was increasing sentiment that the regulatory apparatus created by the 1934 Act had become more of a hindrance than a help to continued progress in the communications sector. Cable television had developed into a potent challenger to incumbent broadcast interests; MCI, Sprint, and other carriers were offering credible substitutes for AT&T's long-distance service, and it was widely anticipated that trends in communication technologies would make it possible to rely on competition, rather than regulatory oversight, to govern an increasing swath of the communications sector. By the early 1990s, the prevailing sentiment was that competition could more efficiently discipline the pricing and quality of communication services than could government using the regulatory apparatus erected under the 1934 Act and that competitive communication markets would develop naturally if market forces were given freer reign.

The Telecommunications Act of 1996 ("1996 Act") was a reflection of this mindset and was widely heralded for ushering in a new era of competition in communications. Yet, only ten years after its passage, the 1996 Act is commonly seen as broken and in need of either wholesale revision or complete replacement. In contemplating new legislation, it is appropriate to ask what accounts for its notable lack of staying power compared to the 1934 Act. Because the 1996 Act is a complex piece of legislation, there are undoubtedly many details, which, had they been handled differently, could have contributed to a more satisfactory experience under the 1996 Act. In this regard, it is doubtful the 1996 Act is different from any other similarly complex piece of legislation. The numerous court challenges and policy revisions in the wake of the 1996 Act could be seen as an inevitable part of a period of reassessment and adjustment as legislation intended to transform a whole sector of an economy is implemented. However, the present disenchantment with the 1996 Act reflects frustration over a lack of progress in designing even the interim policies that were to smooth the transition to more competitive markets for traditional communication industries--and presumably a post-interim regulatory framework compatible with competitive markets. This disenchantment is also based in a growing sense that the continued evolution of communication technologies and the services built on those technologies have raised a host of policy issues that were not anticipated by the 1996 Act. However, we will argue in this Essay that these are but visible signs of three fundamental challenges of policymaking in industries subject to rapid technological and economic change. First, due to the large number of interacting factors and the associated incomplete information issues, it may not be possible to identify a policy model that links policy instruments with specific policy outcomes. …

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