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

19 Pages Posted: 18 Feb 2014 Last revised: 25 Mar 2014

See all articles by Randolph J. May

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; International Center for Law & Economics (ICLE)

Daniel Lyons

Boston College - Law School

James B. Speta

Northwestern University - Pritzker School of Law

Christopher S. Yoo

University of Pennsylvania Law School; University of Pennsylvania - Annenberg School for Communication; University of Pennsylvania - School of Engineering and Applied Science

Date Written: January 31, 2014

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.

Keywords: Communications Law, FCC, New Communications Act, Digital Age, Telecommunications Regulation

Suggested Citation

May, Randolph J. and Epstein, Richard A. and Hurwitz, Justin (Gus) and Lyons, Daniel and Speta, James B. and Yoo, Christopher S., Response to Questions in the First White Paper, 'Modernizing the Communications Act' (January 31, 2014). U of Penn Law School, Public Law Research Paper No. 14-11. Available at SSRN: https://ssrn.com/abstract=2389705 or http://dx.doi.org/10.2139/ssrn.2389705

Randolph J. May (Contact Author)

The Free State Foundation ( email )

P. O. Box 60680
Potomac, MD 20859
United States
301-299-3182 (Phone)
301-299-5007 (Fax)

HOME PAGE: http://www.freestatefoundation.org

Richard A. Epstein

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)

Stanford University - Hoover Institution on War, Revolution and Peace

Stanford, CA 94305-6010
United States

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)

Justin (Gus) Hurwitz

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

International Center for Law & Economics (ICLE) ( email )

5005 SW Meadows Rd.
Suite 300
Lake Oswego, OR 97035
United States

Daniel Lyons

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

James B. Speta

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Christopher S. Yoo

University of Pennsylvania Law School ( email )

3501 Sansom St.
Philadelphia, PA 19104-6204
United States
(215) 746-8772 (Phone)

HOME PAGE: http://www.law.upenn.edu/faculty/csyoo/

University of Pennsylvania - Annenberg School for Communication ( email )

3620 Walnut St.
Philadelphia, PA 19104-6220
United States
(215) 746-8772 (Phone)

University of Pennsylvania - School of Engineering and Applied Science ( email )

3330 Walnut St.
Philadelphia, PA 19104-6309
United States
(215) 746-8772 (Phone)

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