No Consensus on What Replaces Silos in Communications Act Overhaul, TPRC Speaker Says

The speakers said there are open questions on topics from peering agreements to broadband deployment and adoption policy to the nature of federalism. One “nonpartisan starting point” for a Communications Act overhaul may be the principles that former FCC Chairman Michael Powell had introduced years ago, said Pennsylvania State University law professor Rob Frieden. He hoped lawmakers could still marshal bipartisan backing for such principles. Their relevance has not “gone away,” he said. Yoo said the FCC’s unanimous backing for Powell’s principles was due to the principles’ lack of regulation.

Those writing the next Communications Act should consider embracing the federalism model of concurrent jurisdiction, recommended Columbia University Law School professor Tejas Narechania, a former FCC special counsel. It’s an “extremely unusual regulatory design” that retains both state and federal authority -- “the cutting, if not the bleeding, edge of federalism” -- and has come into play with Communications Act Section 706. The FCC established that Section 706 is an affirmative authority over broadband starting with the agency’s creation of its 2010 net neutrality rules, Narechania said. “Now we're in a situation where we're just beginning to see states rely on Section 706,” he said. “We've begun to see more aggressive assertions of Section 706.” He pointed to the California Public Utilities Commission review of the proposed Comcast acquisition of Time Warner Cable and its reliance on Section 706 for its ability to investigate the deal. Alaska regulators had previously relied on Section 706 to request broadband deployment information from companies, he added, saying the affirmative authority is now getting into “the vines of the state commissions."

"Long-term direction” that may help shape any Communications Act overhaul would be to go “past network neutrality and come out the other side,” said Massachusetts Institute of Technology Senior Research Scientist David Clark. He cited what he sees as the mostly successful system of peering agreements as well as complicated terminology, saying VoIP is not the same as voice transmitted over the Internet. Some people “equate Internet and IP,” which can be challenging when dealing with issues like net neutrality, he said.

"ISPs want to offer paid prioritization,” Frieden said. “Is it pay to play? No. It’s a payment for better-than-best efforts.” If there’s a need for the best service, “maybe it makes sense to buy this insurance policy” of a prioritization deal, he said. Frieden said he is “not really keen” on the notion of reclassifying broadband as a Title II common carrier, which some net neutrality advocates say is required for strong net neutrality rules that would ban prioritization deals. “Common carriage does not mean you cannot discriminate among similarly situated users,” Frieden said. “Common carriage doesn’t necessarily solve everything.” Commercial negotiations can resolve disputes, he said.

Yoo pointed to Great Britain as a “fantastic case" for considering different paid prioritization deals, mentioning the country’s ISP with the highest consumer satisfaction prioritizes the World of Warcraft online game above all else. He said some peering disputes should not necessarily bring about regulation: “That people occasionally disagree is not a regulatory problem.” He talked at length about U.S. broadband deployment, “facilities-based competition,” and its virtues compared with European “shared infrastructure strategy,” arguing that U.S. strategy yielded more investment than Europe’s, which is also too focused on fiber. “We have invested two to two and a half times what Europe has, on a per household basis,” Yoo said. Wireless is also becoming all the more important in this space, he added. “The real problem in this country seems to be adoption,” Yoo said of the U.S.