I do believe it’s time for a major overhaul of the Communications Act. As many observers have recognized, today’s Act is based on an outdated approach under which providers too often are regulated based on the historical label that applies to them, rather than the functional characteristics of their service. That approach results in significant marketplace distortions and impedes innovation, and it does not seem to deliver any countervailing benefits. I think there is a broad and growing consensus that a more technology-neutral approach to regulation would be far preferable—one that justifies more limited intervention in the marketplace based on demonstrated market failures or discrete consumer protection goals. Comprehensive reform takes time, so I’m not sure it will get done in the next Congress, but I’m sure we’ll see increasing momentum towards that goal.
Dan Brenner: There is a big difference between whether Congress will and whether it should rewrite the Act. It takes several years for a rewrite—even one as ultimately ambiguous as the 1996 Act—to emerge from the many voices that should be heard on the matter. So the idea that Congress can start and finish the process in one year seems fanciful. Should Congress re-write the Act? Most people can identify some part of the Act that is either out of date or could use clarification. But as the 1996 Act showed, Congress can leave ambiguous phrases to the FCC—and then the courts—to figure out, so a rewrite might not provide much clarity anyway. The silos of the existing act—Title I, 2 3, and 6-hardly describe the world we live in. And all of it is moving toward IP and broadband where, for example, voice is just an application and not a very interesting one from a bandwidth-consumption standpoint. Meanwhile, spectrum needs vary—New York or Los Angeles is facing a crunch but Fairbanks? Not so much. Yet with each state having two senators, what’s important in one area is not the same as another. Legislation will have to address a lot of regional issues to get passed.
Kissel: The cable industry has certainly changed over the 20 years since the Cable Act was enacted into law. The entire video distribution marketplace has changed over that time, and I think Congress should evaluate the current marketplace and make any adjustments to the Cable Act to reflect those changes. There has been some chatter recently about a potential Cable Act rewrite in the next Congress, but I don’t think it is likely. However, the Cable Act rewrite might have a fighting chance if it is linked to economic issues and job creation.
With the approval of SpectrumCo, are any other potential spectrum transactions? Any potential activities on TV white space?
Briller: I am sure we’ll continue to see additional spectrum transactions, not simply because the SpectrumCo transaction has been completed, but because the enormous growth in wireless broadband consumption will drive existing carriers to acquire more spectrum. Indeed, AT&T already has announced a series of proposed spectrum acquisitions, and no doubt there are more to come. In addition, I am sure companies will continue to look for innovative ways to make use of unlicensed spectrum, including both WiFi and TV white spaces. The one certainty in the communications arena is that wireless broadband consumption will continue to grow at a dramatic rate, making spectrum an indispensable resource.
Kissel: I see the potential for additional spectrum transactions. Consumer demand for reliable, high-speed wireless data will only increase in the next few years. In order to meet that demand, companies will need to start making strategic decisions on spectrum in the very near future to build out their networks. Once those decisions are made, I think you will see more spectrum transactions. I think there could be some potential activity with regard to television white spaces once the Commission has laid out its spectrum auction plan and it becomes clear what spectrum broadcasters will relinquish.