Toward a 'Fourth Way:' Congress prepares to completely overhaul telecom law

In an acknowledgment that the regulatory compromise proposed earlier this month by Federal Communications Commission Chairman Julius Genachowski, at the very least, may be inadequate for a long-term resolution to the debate over who or what gets to regulate the Internet in the US, Democratic leaders of both houses of Congress said today they will set the wheels in motion, starting now, for a potential rewriting of all US telecommunications law.

Such an act could, if successful -- and if it can be accomplished in our lifetimes -- finally codify just what Internet communications is and what it does, not with respect to or in comparison with the telephone or the public airwaves. And it could very well result in an entirely new regulatory structure that's not the FCC as we know it today, but may yet have the Congressional authority and mandate to regulate network neutrality in some form.

The news came in an extremely brief press release this afternoon from the Senate Commerce Committee, chaired by Jay Rockefeller (D - W.V.): Speaking for Sen. Rockefeller and his House counterpart, Rep. Henry Waxman (D - Calif.), plus the chairmen of the Senate and House subcommittees on the Internet, Sen. John Kerry (D - Mass.) and Rep. Rick Boucher (D - Va.), the statement included this sentence: "As the first step, they will invite stakeholders to participate in a series of bipartisan, issue-focused meetings beginning in June."


By anyone's measure, the complete rewrite of the Telecommunications Act of 1934 would be a colossal undertaking. The last partial rewrite, completed in 1996, took at least 12 years. With that in mind, Sen. Kerry's office issued a statement to The Hill late this afternoon, indicating that Chairman Genachowski's "Third Way" proposal -- regulating the Internet as though it fell under Title I of the Telecom Act, treating it like a telephone except where it's obviously not a telephone -- may be necessary in the interim. "This process is complimentary to the efforts at the FCC, not a substitute for them," the statement reads in part.

In one respect, opposition to a rewrite of telecom law could be boxed in at this point. After Genachowski announced his "Third Way" proposal, ranking Republicans including the Commerce Committee's Kay Bailey Hutchison (R - Texas) voiced their opposition to the notion that the FCC could declare itself the Internet's formal regulator without Congressional mandate. A rewrite of telecom law would provide such a mandate, to the FCC or whatever agency may emerge from the process.

Early response to the announcement from advocacy groups appears somewhat positive, if tentative. The American Cable Association's CEO, Matthew Polka, released a statement to Betanews and others saying he's hopeful that this process would give the nation's smaller cable operators an opportunity to air their grievances over the current system of cable TV regulation: "Congressional action that would clarify the extent of the Federal Communications Commission's authority to regulate cable broadband service holds the promise of providing greater certainty with fewer unintended consequences for operators and their customers. Review of the Communications Act also provides Congress the opportunity to address other issues impacting small cable operators and their consumers in smaller markets and rural areas, such as outdated retransmission consent and broadcast carriage rules, and ineffective program access regulations."

And one of the groups that has been most supportive of the "Third Way" to date, the Open Internet Coalition, indicated its leaders are nodding their heads as well. Writes OIC Executive Director Markham Erickson, "Our view from the day the case was decided was the FCC needed to act immediately to provide a stopgap protection for consumers and Congress needed to revisit the Communications Act for changes over the longer term...The FCC has already taken the critical first step, putting forward a common-sense plan that would allow the Commission to promote broadband deployment and to protect consumer choice this year. Today's announcement will make sure Congress begins the necessary longer-term steps in this area that will support the FCC's broadband plan. This partnership between the FCC and Congress is exactly what is necessary to make sure the US regains the lead in high quality, affordable, and widely available broadband Internet services."

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