Friday, January 26, 2018

Spurring Broadband Deployment and Reforming Communications Law

The House Subcommittee on Communications and Technology will hold a hearing, “Closing the Digital Divide: Broadband Infrastructure Solutions,” on January 30 to discuss a raft of recently introduced bills and resolutions aimed at encouraging broadband deployment. As reported in TR Daily on January 23, these include H.Res. 687 (addressing federal, state, and local taxes, fees, regulations, and permitting policies); H.Res. 689 (urging preference for prioritizing wireless infrastructure funding to states that have enacted streamlined siting for small cells); H.Res. 690 (opposing funding broadband overbuilds); H.Res. 691 (recommending that broadband deployment be competitively and technologically neutral); and H.Res. 701 (recommending that environmental and historic studies required for broadband deployment be limited to the area impacted).
As for the remainder, here is TR Daily’s bare-bones listing with the bill numbers:

Leading Infrastructure for Tomorrow’s America Act (HR 2479); the ACCESS BROADBAND Act (HR 3994); the Broadband Infrastructure Finance and Innovation Act (HR 4287); the Communications Facilities Deployment on Federal Property Act (HR 4795); the Inventory of Assets for Communications Facilities Act (HR 4798); the Streamlining and Expediting Approval for Communications Technologies Act (HR 4802); the Making Available Plans to Promote Investment in Next Generation Networks without Overbuilding and Waste (MAPPING NOW) Act (HR 4810); the Wireless Internet Focus on Innovation  in Spectrum Technology for Unlicensed Deployment (WIFI STUDy) Act (HR 4813); the Community Broadband Act (HR 4814); the Promoting Exchanges for Enhanced Routing of Information so Networks are Great (PEERING) Act (HR 4817); the Restoring Economic Strength and Telecommunications Operations by Releasing Expected Dollars (RESTORED) Act (HR 4832); Connecting Communities Post Disasters Act (HR 4845); the Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure (HR 4842); the Broadband Deployment Streamlining Act (HR 4847); the CLIMB ONCE Act (HR 4858).

Aside from the use of the clever – even if sometimes awkward – acronym-dictating bill naming protocols, it appears that most of these bills will, in fact, speed broadband deployment by removing or reducing regulatory barriers and facilitating planning processes. Several of them are targeted more specifically at streamlining regulations or processes that otherwise would unnecessarily inhibit deployment of 5G network infrastructure.

Subcommittee Chairman Marsha Blackburn and her committee colleagues should be commended for getting off to a fast start this year in their work to spur broadband infrastructure deployment, including measures targeted to 5G. I haven’t studied all of the details of the bills that will be discussed at the hearing. Nevertheless, it appears that many of them propose common-sense measures that ought to warrant bipartisan support.

Of course, “net neutrality” is the proverbial elephant in the room as congressional Democrats now prepare to attempt to use the Congressional Review Act (CRA) to overturn the FCC’s December 2017 Restoring Internet Freedom order (notwithstanding the fact that several of the leading proponents of this action, only recently, have advocated repeal of the Congressional Review Act.)

Rather than using the CRA process in what almost certainly will be an unsuccessful effort to overturn the Restoring Internet Freedom order, opponents at least should attempt to work across party lines to enact legislation that would resolve the decade-old net neutrality controversy, if not for “all time,” then at least for the foreseeable future.

For many years now, I have stated frequently that I am not fond of a legislative resolution of the net neutrality controversy that writes into law – in other words, that locks in – absolute bans on certain practices, even, say, “throttling,” foreclosing any consideration of the existence or not of market failure or consumer harm. This is especially true, for example, with regard to so-called paid prioritization, where an absolute prohibition, in the absence of consideration of evidence of market failure or consumer harm, seems particularly short-sighted. In other words, in the fast-changing, dynamic Internet environment, legislation that is framed in terms of targeting practices that cause consumer harm or that constitute anticompetitive abuses, examined by the expert agency in the context of current and projected market conditions, is preferable over a law containing outright bans.

Be that as it may, consumers are not well-served for net neutrality regulations to be akin to the proverbial ping-pong, with a change in the rules accompanying each change in administration. Even as the Internet services marketplace and the technology continue to evolve at a quick pace, there certainly is value in stability of the rules of the road. Aside from the need for the market participants to have a predictable, stable legal regime, which facilitates investment and innovation, far too many resources are consumed non-productively by opposing parties contesting regulations subject to administrative ping-pong. To my mind, Chairman Blackburn’s “Open Internet Preservation Act” represents a good starting part for discussing a compromise net neutrality bill.

In the meantime, and in the near term, the cause of advancing broadband infrastructure deployment, including deployment of game-changing 5G networks, ought to be one on which bipartisan consensus can be reached. Tuesday’s hearing is a welcome step in the right direction.

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PS – Note immediately above that I said “in the near term.” I remain convinced that, if not this year, then in the not-too-distant future a comprehensive overhaul of the Communications Act is needed. Back in 2014, the House Commerce Committee initiated what it called a #CommActUpdate process to begin examining what a modernized law – one fit for the Digital Age – should look like. Amidst the heat of the net neutrality controversy that overhaul effort has stalled. But for the full potential of the digital revolution to be realized in a way that enhances overall consumer welfare, and the nation’s social and economic well-being, there will need to be a #CommActUpdate that requires evidence of market failure and consumer harm before regulatory sanctions are imposed.

With that in mind, for those who are willing, or even anxious, to “think ahead,” I commend to you the book recently published by the Free State Foundation titled, #CommActUpdate – A Communications Act Fit for the Digital Age. In addition to a Preface and a lengthy, substantive Introduction containing much detailed background information, this new book reproduces all six Responses to the House Commerce Committee’s White Papers prepared by a distinguished group of Free State Foundation-affiliated scholars. I’m convinced, and I think you may be as well, that the book’s recommendations are instructive in pointing the way forward as the digital revolution continues to produce more competition and more convergence in the communications marketplace.