Replanting the Roots of Communication Policy

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February 4th, 2015

[Update: shortly after this was written, the FCC released details about Chairman Wheeler’s “Protecting the Open Internet” proposal, which will be discussed here in later posts]

With the FCC expected to classify broadband access as a Title II common carrier service, while also preempting state restrictions on municipally-owned access networks, the Commission’s February 26 meeting is poised to launch a new era in U.S. communication policy.

To appreciate the significance of the Commission’s impending Title II decision, it’s useful to step back from the drama and details of today’s regulatory and market battles, and consider the agency’s upcoming vote from a historical perspective, starting with the Communications Act of 1934. I’d suggest that, viewed from that perspective, the FCC’s decision to treat broadband access under Title II is an attempt to replant the roots of communication law in the fertile ground of today’s First Amendment-friendly technology.

The Act’s stated purpose was:

“to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges.”

Given the relatively primitive technology of that era, the 1934 Act adopted different regulatory schemes for wireless broadcasting and wireline telephony, each designed to accommodate the technical constraints of the industry it was to regulate. Wireless broadcasting, constrained by technical interference among a cacophony of competing “voices,” was addressed by a system of exclusive licensing. This gave a relative handful of licensees First Amendment megaphones of unprecedented reach and power, in exchange for a vague and difficult-to-enforce set of “public interest” obligations.

Unwieldy at best, enforcement of broadcasting’s public interest regulations was largely abandoned in the 1980s under the Reagan Administration, which viewed deregulation as a much needed and broadly applicable solution to the nation’s economic problems. From that perspective, the best way to serve the public interest was, in most cases, to rely on the “magic of the market.” To the Administration’s first FCC Chair, Mark Fowler, the powerful broadcast and cable media were just more markets needing a healthy dose of deregulation.  As he famously put it, television was “a toaster with pictures.”

Fowler’s comment not only ignored television’s powerful social and political influence and vital First Amendment role, it also failed to acknowledge that the broadcast license model (along with legal or de facto exclusive cable franchises) had fundamentally imbalanced the First Amendment playing field. Deregulating the broadcast sector after decades of such imbalance simply aggravated these existing imbalances, as economic drivers pushed the broadcast and cable sectors (and other mass media) toward ever greater levels of consolidation.

Under the broadcast and cable TV models, the status of citizens is relegated to “media consumers” (a.k.a., “eyeballs”), whose aggregated attention is sold to commercial and political advertisers. In this model, the main ways for individual citizens to exercise their First Amendment rights is by choosing from among a handful of available multichannel bundles and bundlers, and using their remote to change channels and mute the audio during especially loud and annoying commercials.

In contrast to its approach to broadcasting, the 1934 Act treated telephony as a Common Carrier under Title II of the Act. Though its copper network supported only one-to-one narrowband voice communication, telephony’s non-discrimination and universal service requirements made it fundamentally more First Amendment-friendly than broadcasting’s reliance on vague, indirect and hard-to-enforce “public interest” requirements. If you wanted to talk to someone, you simply picked up the phone and called them. You didn’t need permission from or need to negotiate with the telephone company. Nor did you have to pay that company more if particular calls made you lots of money or were otherwise especially valuable to you.

But the telephony model also suffered problems beyond its technical constraints. Lacking competition, AT&T, the nation’s dominant monopoly provider, tended to resist or even block innovation it did not control; the technology running its network remained proprietary and expensive; the process of price regulation became increasingly complex and litigious; and the dynamics of regulatory capture became deeply entrenched. The result was prices protected from competitive pressures, and ploddingly slow introduction of new services, features and devices, even as technology and customer preferences evolved with increasing speed.

When we focus on these two historical roots of communication law rather than the latest round of regulatory and PR skirmishes, it becomes easier (and more important) to recognize the unique power and significance of the Internet, something FCC chairman Tom Wheeler, a self-described history buff, appears to do.

Not only does it combine the strengths of television (harnessing the power of high-quality video and one-to-many communications) and telephony (universal, non-discriminatory access to a relatively symmetrical two-way network), the Internet adds to this an innovation-focused ecosystem built on a foundation of low-cost, standardized (and often open-source) hardware and software. The result has been a massive amount of innovation, creative collaboration, economic growth, free speech, and citizen empowerment, a historic development that my colleague Bill Dutton, director of the Quello Center, has described as the “Fifth Estate.”

To remain true to the purpose and goals of the 1934 Communication Act in a world that no longer faces the technical constraints the law’s drafters were confronted with, I’d suggest we consider the following questions in evaluating the FCC’s Title II decision and communication policy in general:

  1. Can today’s communication technologies readily support the application of the “direct” First Amendment treatment embodied in common carrier regulation to virtually all forms of electronic communication? Put another way, can we remedy the First Amendment imbalancing that the 1934 Act institutionalized in its effort to accommodate that era’s relatively primitive technology?
  2. If so, should we not adopt such policies to remedy the longstanding and destructive First Amendment imbalances that have plagued the communications sector and our social, political and economic systems since Congress passed the 1934 Act?
  3. Would a failure to adopt such policies and instead allow or even encourage increasingly consolidated and unregulated control of essential wired and wireless communication infrastructure violate the First Amendment, if not in letter, at least in spirit?
  4. And would such a failure also constrain and/or distort the healthy evolution of our economy, democracy and society?

I’d argue that the answer to all four questions is yes. And I salute chairman Wheeler–who played a key role in the industry’s development as chairman of NCTA and later CTIA–for embracing a deep and historical view of policy issues that are difficult to resolve without upsetting those who, in the course of that development, have gained control of the access networks that connect American citizens to the Internet and to each other.

In a future post I’ll focus on the Commission’s planned action on state laws restricting municipal broadband, a second key component of its effort to carefully replant and revitalize the roots of U.S. communication policy in the digital age.

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