Response to Questions in the First White Paper, ‘Modernizing the Communications Act’

Posted by Social Science Research Network

Response to Questions in the First White Paper, ‘Modernizing the Communications Act’ – Randolph J. May (The Free State Foundation), Richard A. Epstein (New York University School of Law; Stanford University – Hoover Institution on War, Revolution and Peace; University of Chicago – Law School), Justin (Gus) Hurwitz (University of Nebraska at Lincoln – College of Law), Daniel Lyons (Boston College – Law School), James B. Speta (Northwestern University – School of Law), and Christopher S. Yoo (University of Pennsylvania Law School; University of Pennsylvania – Annenberg School for Communication; University of Pennsylvania – School of Engineering and Applied Science)

ABSTRACT: The House Energy and Commerce Committee has begun a process to review and update the Communications Act of 1934, last revised in any material way in 1996. As the Committee begins the review process, this paper responds to questions posed by the Committee that all relate, in fundamental ways, to the question: “What should a modern Communications Act look like?”

The Response advocates a “clean slate” approach under which the regulatory silos that characterize the current statute would be eliminated, along with almost all of the ubiquitous ‘public interest’ delegation of authority found throughout the Communications Act. The replacement regime would have at its core a new competition-based standard that, except in limited circumstances, would require that the FCC’s regulatory activities be tied to findings of consumer harm resulting from lack of sufficient competition. The FCC’s authority to adopt broad anticipatory rules on an ex ante basis would be substantially circumscribed, and the agency would be required to rely more heavily than is presently the case on ex post adjudication of individual complaints alleging specific abuses of market power and consumer harm. Some aspects of the FCC’s current jurisdiction, such as privacy and data security regulation, might be transferred to the FTC in light of the FTC’s institutional competence in these areas.