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CHAPTER II - Fractured Responsibility

In the communications regulatory arena, certain powers traditionally have been exercised at the national level by the Federal Communications Commission (FCC), while other powers have been exercised at the state or local levels. For instance, the FCC historically has regulated interstate telecommunications services, while state public utility commissions have regulated intrastate telecommunications services. The FCC regulates radio spectrum, while localities issue franchises for cable television providers. Meanwhile, some players in the internet ecosystem have faced little to no regulation.

In the internet world, many of these traditional divisions of responsibility have been upended. Many of the emerging areas of concern are falling into gray areas where there are few existing standards. Decisions abroad can and do have extraterritorial impact. At the federal level, more than one agency plays a significant role in funding investment in communications infrastructure. Other federal government agencies will play a critical role in setting the rules for services and applications that rely upon the existence of ubiquitous communications infrastructure. And there is keen interest among those closest to the people—state and local government officials—to ensure their constituents can take advantage of new innovations in the evolving communications landscape. But as A.J. Bhadelia, Manager of Public Policy and Government Affairs at Google, pointed out, there is a patchwork of state agencies and state legislatures, each pursuing their own goals.

Blair Levin, a Fellow at the Brookings Institution, opened the conference with a presentation on different approaches to regulation in a con- verged communications environment. Historically, there were separate networks for voice communications, over-the-air broadcasting, multi-channel video programming and data communications, each subject to differing regulatory regimes. Now, we have a converged network offering voice, video and data, and traditional regulatory constructs applying to different silos no longer make sense. Levin offered three potential approaches, not mutually exclusive, for reexamining the current regulatory framework in light of convergence:

  1. Create targeted, uniform governmental oversight over common elements of a converged network, such as device regulation, spectrum policies, competition policies and deployment policies.
  2. Define the problems that need to be solved and develop a tactical list focused on those problems.
  3. Start with a clean sheet and focus on the important roles that government plays (see Figure 1):
    • Information: What kind of information should be collected, analyzed and disseminated to help government policymakers, educate consumers and inform markets? Accurate information is foundational to many of the other roles that government may play.
    • Consumer protection: What kind of activities should consumers be protected against, regardless of the level of com- petition? Examples include fraud, spam and use of private information.
    • Access to deployment inputs: How does society facilitate access to key inputs for network deployments and use, such as spectrum rights (including prevention of interference), poles, rights of way, buildings and intellectual property?
    • Competition: How does government policy encourage or assure a competitive environment and protect against anti- competitive behavior?
    • Regulation: How does government regulate to assure that public goods are created, such as 911 and emergency alerts? And how does government ensure that innovation is enabled, for instance with respect to the Internet of Things and autonomous vehicles?
    • Provider: How does the government act, either by itself, in partnership, or by funding, to assure the provision of certain goods and services? Examples include the FCC’s Universal Service Fund (USF), municipal broadband, smart cities, smart grid, smart transit and other public service applications.
Figure 1. Government Roles in Broadband Policy
Source: Blair Levin, Presentation at the 2018 Aspen Institute Conference on Communications Policy in Aspen, Colorado.

Other conference participants offered their own perspectives. Former FCC Chairman Reed Hundt, now CEO of Making Every Vote Count, believes it is time for a deep rethinking of the role of government in a digital world. In his view, the focus should be on government creation of public goods, a commitment to entrepreneurship and innovation, social justice and an international agenda. Mark Lloyd, Professor at the USC Annenberg School for Communications and Journalism, agreed that these are extremely important, but we should be asking not only what is important but also for whom. He suggested looking to the needs of citizens, families and communities, and not just consumers and the marketplace.

Marc Rotenberg, President of the Electronic Privacy Information Center, recalled sentiments expressed by the Computer Professionals for Social Responsibility 25 years ago, at the birth of the commercial internet:

The National Information Infrastructure (NII) holds great promise for the future. The convergence of communications technologies and the expansion of network services will trans- form our society and create unparalleled opportunities . . . the benefits of the NII should not be framed solely in economic or functional terms. The nation’s communications infrastructure should reflect the values of democracy. Ultimately, the success of the NII will be measured by whether it empowers citizens, protects individual rights, and strengthens the democratic institutions on which this country was founded.

Rotenberg noted that back then there were a number of concerns for the future of the Net:

  • Would there be universal access?
  • Would a small number of companies dominate the network?
  • Would carriers control content?
  • Would services emphasize commerce at the expense of communications?
  • Would public access to government information be restricted?

He proposed that it is time to check to see if we have made progress or have fallen back.

David Redl, Assistant Secretary for Communications and Information, and Administrator of the National Telecommunications & Information Administration (NTIA), while acknowledging the focus on convergence, suggested that pipes and data are fundamentally different things. The central question of the decade, he proposed, will be to determine what rules should apply to pipes, what rules should apply to data, and what should apply to both.

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