November 9, 2011

The Continuing Case for Serious Communications Law Reform

  • Raymond Gifford

    Partner at the law firm of Wilkinson Barker Knauer, LLP
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Communications law reform is like Brigadoon. It appears periodically, presents a gauzy vision of a better, more logical and sensible communications world, and then recedes into the mists, only to reappear again after a suitable interval. Lacking a book and lyrics by Lerner and Loewe, communications law reform might not make for quite as compelling a revival as Brigadoon, but it continues to reappear as a topic for the FCC chairman,1 think tanks,2 and Congress to discuss,3 even if it gets sent into hibernation by more pressing topics like mergers, net neutrality, or the latest indecent utterance or image broadcast on the airwaves. Nevertheless, a high-level consensus exists between progressive and free-market groups, the regulators and the regulated, that we need some reformation of the FCC and communications law, even if there is not agreement on the substantive details. If reform is not going to disappear again into the mists, then substantive proposals need to be brought forward, or, in the case of this paper, dusted off.

FCC reform has again pushed its way onto the stage, though perhaps not center stage. The House Commerce Committee, led by Communications and Technology Subcommittee Chairman Greg Walden, is proposing reforms at the FCC: more rigor and time limits in its processes, the use of cost–benefit analyses, and the curtailing of duplicative merger reviews with “voluntary” commitments. Despite these proposals, the current discussion surrounding reform accepts many of the legacy categories, methods, and assumptions of 1934 telecommunications law.