Boucher To Seek Telecom Law Overhaul Next Congress

"The current statute is badly out of date,” and the FCC is struggling to keep up with the fast pace of the Internet, Tauke said. The last substantial telecom law update was signed in 1996. Tauke urged Congress to write legislation encompassing all parts of the Internet industry, including carriers, Web companies and manufacturers. Congress also should replace the “traditional rule-making process” with “understandable principles that can provide guidance but are informed by experience,” he said.

Boucher backs moving to “functional regulation” from “sector-specific” regulation, he said. Cable and telephone providers are essentially offering the same service, and so should receive “equivalent treatment,” he said. Congress has a “full plate” of issues and has no time to tackle comprehensive reform now, said Boucher. He believes he can find bipartisan support in the next Congress. Boucher added that he will release privacy legislation in April that would tackle some of Tauke’s concerns.

An overhaul of the Telecom Act “should be our goal,” but that could take “a year or two,” Klobuchar said. In the meantime, Congress should make laws on ETFs and broadband service information, she said. “If you do that, it doesn’t mean you can’t also do the comprehensive bill.” If Verizon wants consumers to be empowered and well-informed, they should support legislation requiring companies to disclose actual Internet speeds (S-3110) and a separate bill to limit ETFs and require disclosure of the fees (S-2825), said Klobuchar, who sponsored those bills. Consumers are “strapped in” with ETFs, and can’t properly assess their broadband service without more information, she said.

"I don’t see that [Tauke] calls for a new law regulating the Internet,” said House Communications Subcommittee Ranking Member Cliff Stearns, R-Fla. “Instead, he notes that the current regulatory framework has been surpassed by innovation and technology. I agree the FCC’s processes and procedures should reflect current market conditions. Also, everyone should be involved, including Internet engineers and technologists, so that we can make better policy decisions affecting technology trends."

Tauke said it’s “really unlikely” the current Congress will write Verizon’s proposal into law “at this stage in the Congressional session.” Rather, it’s “something … for the next Congress or the one following,” he said. “But you got to get the discussion moving.” If the U.S. Court of Appeals for the District of Columbia Circuit decides in the Comcast-BitTorrent case that the FCC lacks jurisdiction under Title I of the Communications Act, Congress’s pace could be quickened, he said. “Congress wasn’t designed to move quickly, and rarely does,” said Tauke, a former congressman. Verizon has been talking to members of Congress and other industry players “for years” about the need to tackle these questions, he said. The “jurisdictional question” has become more urgent than ever, given the D.C. Circuit case, and current debates about net neutrality and behavioral advertising, he said.

Verizon believes the FCC lacks authority to regulate the Internet or broadband under Title II, which was written for the early 20th century, said Tauke. Later he said he would be surprised if the agency invoked Title II jurisdiction: “If they did, I can assure you it would end up in court."

New laws should apply to all parts of the Internet market, Tauke said. “The value proposition to the consumer is really a package created by many companies acting together with little, if any, regard to their previous corporate histories. So no set of companies should be immune from scrutiny.” Tauke suggested four principles: (1) Legislation should allow consumers to choose their own devices, software, content and services, and require transparency so consumers are well informed about their broadband connections and other services. (2) It also should protect consumer security and privacy with rules that apply across the ecosystem, online and off. (3) Consumer access and adoption should be priorities, and Congress should consider giving subsidies directly to low-income consumers. (4) Internet laws should protect consumers and stop anti-competitive activity, he said.

Congress should leave behind “traditional regulatory models based on rules written to shape and control more static, ‘one purpose’ industries” like TV or telephone, said Tauke. Such models “are not only out of step with today’s dynamic, converged Internet ecosystem, they are harmful to the innovation process that characterizes broadband and the Internet.” Instead of conducting rulemakings, federal agencies “could structure themselves around an ongoing engagement with Internet engineers and technologists to analyze technology trends, define norms to guide such questions as network management and understand in advance the implications of new, emerging technologies."

Under the proposal, agencies would respond to problems as they crop up and make decisions “based on the facts at hand,” said Tauke. Internet laws would evolve over time, he said. “The advantage of this is that it allows for flexibility” to account for industry and technological changes, and enables quick decision making. Tauke took no position on which agency should be in charge: “I'm not suggesting that broadband regulation should move out of the FCC, nor am I suggesting it should be within the FCC. … Congress can determine whether it’s a somewhat reformed FCC, or whether it’s the FTC or some new entity."

AT&T agreed legislation is the only way to resolve questions about the FCC’s ability to regulate. “If there are questions about the authority of the FCC in the Internet ecosystem, the proper answer is not for the FCC to get adventurous in interpreting its authority, as some are urging,” said Senior Executive Vice President Jim Cicconi. “Instead, any question of the FCC’s jurisdiction over the Internet should properly be referred to the Congress for resolution."

Verizon and other incumbents seek “a toothless, do-nothing agency,” countered Free Press Executive Director Josh Silver. “After eight years of deregulation, consumers have been left with higher prices, lower speeds and ever-dwindling choices. The last thing this country needs is another law written by special interests for their own benefit.”