Unpredictability of Communications Act Amendments

I wrote recently about the FCC's latest strategy to deal with the network neutrality issue by reclassifying broadband as a telecommunications service. Not unexpectedly this has upset some politicians who are perfectly happy with the status quo of letting the market, not the government and especially not the FCC, sort things out. What is surprising is that there is now a move afoot by some in Congress to reopen the Communications Act in order to wrest control of the agenda from the Administration and the FCC.

This is an unusual move since, as this New York Times article correctly notes, it is not something that Congress often takes on, or takes on expeditiously.

Any overhaul is likely to take some time. Congress has little time left on this session’s calendar. And it took more than five years to produce the 1996 Telecommunications Act, which itself was the first major overhaul of telecommunications law since the Communications Act of 1934.

Despite the apparently poor odds of Congress following through with legislation, they must not be discounted. From the outside the complex and fractious grandstanding and hearings always seem to go absolutely nowhere. But as in so many politically-charged issues, the thick smoke can hide an actual fire; substantive and even conclusive discussions may develop out of public sight. This is where the US government is so different from that in Canada, that there is actual negotiation among the parties since the Administration can only influence or pressure, but not order Congress to act in any specific way.

I remember when, over 14 years ago, I was certain that Communications Act reform was all but impossible, an opinion I formed from casual observation of media coverage of the antics. I had no particular stake in the outcome, only knowing that whatever did finally emerge would affect my employer at the time (Nortel) to a greater or lesser degree. Imagine my surprise when one morning I walked into work and one of my employees informed me that the Senate and the House has come to agreement and the Telecommunications Act of 1996 would shortly be signed into law by the President.

That was not the last time those politicians surprised me, but it did teach me to prepare for surprises. Anyone on the outside, even within the US, simply cannot know what is going down behind the veil of the publicity smoke screen, or at least not with any clarity. There is danger in pontificating with imperfect knowledge.

Regardless of Congressional process, the FCC will continue on their path. In a sense they are now in a competition to see which body will take the next step to reform communications law and regulation. I expect the FCC to prevail, but I am now wise enough to know just how wrong I could be.