The Telecommunications Act of 1996 has been outdated since the moment it was signed into law. A rewrite is long overdue, and there has been a bipartisan consensus on this point for nearly twenty years. Yet, two decades after Clinton and Gore called for a technologically neutral communications act, we are still watching the FCC struggle to apply the 1996 Act in a world that looks nothing like its basic assumptions, and where voice, video and information have become applications delivered over radically different platforms.

Today, TechFreedom and the International Center for Law and Economics (ICLE) submitted comments in response to the House Energy and Commerce Committee’s third white paper in its examination of how communications law can be rationalized to address the 21st century communications landscape. The organizations’ experts call on Congress to rewrite the 1996 Telecommunications Act and reassert its authority over the FCC. Key points:

  • Content/app providers have enjoyed a flourish of innovation in the Internet age, yet broadband and infrastructure remain hamstrung by the 1996 Act. This regulatory framework wrongly assumes that infrastructure monopolies threaten competition in the content/app market, and that network competition is hopeless and impossible. The Act’s myopic focus on content has stifled innovation and competition among infrastructure providers and ISPs.
  • The FCC’s proposal to reclassify broadband as a public utility is not only impractical, but also a blatant attempt to rewrite the 1996 Act without congressional authority. This kind of legislating is something only Congress, the people’s elected representatives, can do. A rewrite of the 1996 Act is already occurring — except it is being done by the FCC, informally, with no clear limits on its discretion, and with little analytical rigor. The uncertainty created by this dynamic is already discouraging investment, and arbitrary reclassification of broadband would only exacerbate this problem. Congress must step into the void.
  • There is a fairly simple solution to the problem of anti-competitiveness in broadband, and it derives from a consensus forged in 2005 by a politically diverse group of academics and tech policy experts: The FCC should focus on advancing consumer welfare by rigorously assessing costs and benefits, including the negative costs of over-regulating. This approach allows innovation, technological development and changes in consumer preferences to guide conduct, intervening only where actual competitive harms develop.