Free State Foundation President Randolph May issued the following statement regarding Chairmen Upton and Walden's announced plans to begin the process of updating the Communications Act:
"I am pleased that Chairmen Upton and Walden have announced plans to embark on a process leading to an update of the Communications Act. There is widespread agreement, which I share, that a comprehensive rewrite of the current statute is in order in light of the dramatic technological and marketplace changes since the Communications Act was last updated in 1996.
Of course, a comprehensive examination of how the current statute ought to be changed will involve many questions, but there are a few fundamental principles that ought to be overriding. First, in light of the transition to a digital environment and the concomitant convergence of services in the Digital Age, the current 'stovepipe' regime, which regulates comparable services differently based on techno-functional constructs, needs to be replaced by a technology-neutral regime so that competitive services are not treated differently. Second, and just as importantly, a new act should require that the Commission's regulatory activity be tied explicitly to whether a market failure exists and whether demonstrable consumer harm is proven, not to vague, subjective, malleable notions of the 'public interest.' Finally, the Commission's authority to engage in overly broad, anticipatory rulemakings that lend themselves to regulatory overreaching through log-rolling and conjuring of speculative harms should be curbed.
The effort announced by Chairmen Upton and Walden may well be a multi-year process, but, as I have advocated for a long time, it is important to commence the process. I might add that, in the meantime, because of the extent of existing marketplace competition and technological change, it may make sense for Congress to adopt more narrowly targeted regulatory relief measures. For example, for several years I have advocated revision of the Communications Act's Section 10 forbearance provision to require that forbearance petitions be granted absent clear and convincing evidence that such relief is not warranted. And I have also advocated for seven years now that Congress revise Section 629 regarding the FCC's set-top box rules to grant regulatory relief to cable operators. Congressman Bob Latta has recently introduced bills to accomplish both of these objectives, and pending a more comprehensive legislative rewrite, I don't see any reason why these sensible measures should not be adopted.
Finally, along with other Free State Foundation scholars, I look forward to contributing in a constructive fashion to the reexamination process that Chairmen Upton and Walden have begun, and I commend them for it."
Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 150 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the editor of the new book, "Communications Law and Policy in the Digital Age: The Next Five Years." He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? and Communications Deregulation and FCC Reform.
