In the midst of a busy week for communications policy, MMTC’s Fifth Annual Broadband and Social Justice Summit started its second day with a panel of five current or former FCC Commissioners. Former FCC Commissioners Deborah Taylor Tate and Jonathan Adelstein, President of PCIA, led sitting Commissioners Mignon Clyburn, Ajit Pai, and Michael O’Rielly in an engaging conversation that touched on a number of issues the Commission is likely to take on this year.
The timing for such a discussion couldn’t have been better if it were in a Hollywood script. On Tuesday, the DC Circuit released its decision in Verizon v. FCC, ruling that the Commission’s open Internet rules may require broadband carriers to disclose their traffic management policies to consumers, but that the Commission overstepped its authority in requiring carriers to treat all traffic equally. On Wednesday, four former FCC Chairmen testified at a hearing before the House Subcommittee on Communications and Technology on whether advances in technology require revisions to the Communications Act. The Summit panel Thursday morning touched upon these and other topics, including MWBE participation and expanding access to broadband.
Does the Communications Act Need a “Fixer”?
Commissioners Tate and Adelstein opened the conversation on whether there was a need for a new Communications Act. Many feel the Act, written in 1934 and revised by the Telecommunications Act of 1996, needs further revisions because of how advanced technologies allow consumers to access content and services. Today, I can watch Scandal on my HDTV, tweet about the show with my friends, and share color commentary on the phone with my sister-in-law – all over the same wire or “pipe.” This was not the case in 1996, when the Internet wasn’t as advanced and voice and video were separate services delivered through separate pipes. “Convergence is a reality,” stated Commissioner Pai, who believes the agency should work toward “giving all Americans opportunities in the digital age.”
“I don’t think we should be surprised or threatened” when considering reforming the Act, said Commissioner Clyburn. Prior to opening the BBSJ Summit, the New Telecom and Internet Policy Task Force convened on Wednesday. Comprised of a number of stakeholders from industry, public interest, and academia, the group is exploring where there is consensus on the matter, and shared some of those ideas with the FCC and members on the Hill late last year. Commissioner O’Rielly, who last worked on the Hill as a Policy Analyst on Technology and Commerce issues, stated, “We should not be scared of a conversation on the rewrite,” but noted that deference should be given to Congress on the matter because the FCC is an administrative agency created by Congress.
Revisiting the Open Internet
The three current Commissioners are also ready to see what will come from the D.C. Circuit’s open Internet ruling. While it was unclear whether the Commissioners agreed with the court’s ruling, what is clear is their desire to continue to protect consumers. Transparency and consumer engagement are important, according to Commissioner Clyburn. Some fear that if open Internet issues are not handled appropriately, my Thursday evening tweet-talk-viewing sessions could be in jeopardy because of how carriers choose to manage traffic. Commissioner O’Rielly stated that the ruling won’t have a dramatic impact on consumers, while Commissioner Pai believes that “the Internet thrived under light touch regulatory approach,” and that the agency should remain focused on deployment and adoption efforts.
Though what occurs in the court and Congress may not be “handled” soon, many believe that the Commission’s actions in the last few months put the agency in a good position to facilitate opportunities minorities and underserved communities.
With the confirmation of new Chairman Tom Wheeler and new Commissioner O’Reilly in October, the Commission has recently begun working with a full staff after almost five months in 2013 when Commissioner Clyburn was Acting Chairwoman. More than a place-holder, Chairwoman Clyburn played an important role in ensuring that issues concerning communities of color and minority business enterprises (MBEs) would be addressed by the time a full commission was confirmed.
One issue that will have a major impact is rate reform for prison payphones, where families will no longer be charged exorbitantly high rates to keep in touch with relatives who are incarcerated. Commissioner Clyburn noted that those who rely on these payphones are often from economically distressed communities, and is proud that “rate relief will soon be realized by those families.”
Another area the Commission moved on under Clyburn’s direction was review of the FCC’s foreign ownership rules, an item that was sitting before the agency for nine years. Such delay in action was a topic all three current Commissioners found troubling. In discussing review of the FCC’s multilingual emergency alert rules, Commissioner Pai noted that MMTC’s petition on the matter has been pending for years. Commissioner O’Reilly was equally concerned about regulatory delays, stating that the agency has “an obligation to decide these things one way or the other.” It is therefore no coincidence that administrative delay is a topic of FCC and Communications Act reform as Congress considers whether it should revise the Act altogether.
An Opportunity to Shine
As they look forward, all the panelists want to ensure opportunities for market participation. While acting chair, Commissioner Clyburn initiated a proceeding to reform AM radio, revising technical rules that will enhance this service. Commissioner Pai noted that approximately two-thirds of minority broadcasters are on the AM dial, particularly those serving multilingual communities, and mentioned that many of MMTC’s proposals were addressed in the rulemaking. Broadcast ownership is at historic lows, Pai stated, and that the FCC’s actions in the media ownership proceeding are “long overdue,” including action on an incubator proposal, originally presented over 20 years ago by the National Association of Black Owned Broadcasters (NABOB).
Commissioner O’Reilly suggested potential licensees consider low-power radio as low-cost method to enter broadcasting, but recommends new entrants look for opportunities related to new technology. Many of those opportunities have the potential to be realized after the broadcast spectrum incentive auction, either by broadcasters who retain their spectrum and offer channel sharing agreements, or those who bid on the spectrum to provide wireless services. Commissioner Pai suggested the FCC could do a better job with outreach to broadcasters prior to the spectrum auction, making them aware of options such as channel sharing that will allow them to stay in business and increase their potential for profitability. Stressing that the agency should facilitate opportunity, there is also a need for “legally sustainable” ways to create these opportunities, said Commissioner Clyburn, “If you keep things the way they are, they will remain the way they are.”
Including Communities Beyond the Redline
Opportunity to access information must be made available to consumers as well, regardless of location. Some question whether municipally-sponsored gigabit service, where connections are only provided if enough residents pre-subscribe, will result in digital redlining similar to advanced phone service in the late 20th century. All three Commissioners believe that it is in broadband providers’ best interest to offer and expand service to all consumers, with Commissioner Clyburn stating that the Commission should act to “bridge critical divides.” She cautioned that where ensuring high-speed internet access for all, all communities may not get the services they deserve if left to the market alone and that any type of digital redlining should be eliminated. The Universal Service Fund (USF) should be a tool to ensure access, according to Clyburn, who believes that e-rate reform and play a role. “This matters to families,” said Commissioner O’Reilly speaking on e-rate reform, and sees this as a chance to fix the program as well as ensure that funds are used efficiently.
Share Your Concerns
It is clear that between the court, the Congress, and pending rulemakings, the Commission has a lot of material to work through in the next few months. Now is the time for those of us who believe that minority inclusion is important to continue conversations like those at the BBSJ Summit, build coalitions, and work with the FCC to ensure that as the digital transition continues our concerns are addressed and that our communities and businesses thrive.
View the entire FCC Commissioners’ Breakfast Roundtable from the Fifth Annual Broadband and Social Justice Summit here.
Joycelyn F. James, Esq. is a graduate of the Institute for Communications Law Studies at the Catholic University of America Columbus School of Law. She currently serves as the Cathy Hughes Fellow for the Minority Media & Telecommunications Council, where she works on matters that focus on the advancement of minority and women’s entrepreneurship in the nation’s media and telecommunications industries.