^{Democracy & Technology Blog} Sen. DeMint introduces Digital Age Communications Act

Senator James DeMint (R-SC) has introduced the Digital Age Communications Act which was developed by a group of scholars led by the Progress & Freedom Foundation’s Randolph J. May and Professor James B. Speta of the Northwestern University School of Law.
PFF’s Adam Thierer identified the basic problem best when he observed that “although the communications / broadband marketplace is becoming one giant fruit salad of services and providers, regulators are still separating out the apples, oranges, and bananas and regulating them differently.” The proposal introduced by Senator DeMint would solve this problem by regulating services which are alike from a consumer perspective similarly.
A second problem is that the FCC has been governed by a completely vague “public interest” standard that has allowed it to do whatever it wishes. The proposal would limit mischief by the FCC by subjecting the agency to something like the Federal Trade Commission Act, which substitutes antitrust law and economics for public utility law as the guiding principles for regulation. As the DACA report issued by PFF earlier this year observes,

“the antitrust laws are laws of general jurisdiction, and a government enforcement action generally must be proved before a court of law. An antitrust model therefore minimizes the possibilities of public choice, in which an agency seeks to perpetuate its mission by continuing regulation of a particular industry or in which incumbents capture a regulator to prevent new competitors from emerging.”

This is a tremendous improvement, although it is not clear to me why we need a separate agency, the FCC, to administer this. That’s a duplication of the roles already played by the Federal Trade Commission and the Antitrust Division of the Department of Justice, who have more experience and expertise in these matters and which do a perfectly adequate job for every other industry.
The proposal largely levels the regulatory playing field by subjecting similar services to the lowest denominator of regulation, but not always. It balances pure deregulatory theory with political considerations and notions of competitive fairness. And that leads me to the one serious objection I have. The proposal would extend FCC regulation to all networks, including the Internet. I don’t agree with this result, nor do I agree with the reasoning behind the result:

“The FCC is given regulatory jurisdiction over all electronic communications networks and services. This possibly may be an expansion of the FCC’s current jurisdiction…The Working Group considered this choice difficult, because it conflicts with its general desire, warranted by competition in the marketplace, of more definitively ensuring a decrease in the scope of regulation…the Working Group concluded that some form of sector-specific regulatory oversight was justified. Once that decision was made, technological and competitive neutrality seemed to require a broader brief for the agency.”

The Working Group believes that the substantive limits which the proposal would place on the FCC’s exercise of its authority will be sufficient to limit regulatory activity. I am somewhat skeptical, but I commend Senator DeMint for introducing a proposal that is light years better than where we are under current law.