Ships Passing in the Night: The Communications Act and the Convergence on Broadband

Authors

Stuart Minor Benjamin, Duke Law SchoolFollow

Document Type

Article

Publication Date

2022

Abstract

The Communications Act of 1934 and its amendments (the “Act”), and the regulations implementing them, have been enormously important to traditional telephony, broadcasting, and multichannel video. Meanwhile, the internet is barely mentioned in the Act. It thus might seem reasonable to conclude that the Act stands as a colossus and that the argument for overhauling it has grown much stronger as the Telecommunications Act of 1996 (the “1996 Act”) becomes ever more outdated. In this Article I suggest otherwise. Specifically, I make three claims—one descriptive, one a bit speculative, and one normative. The descriptive claim is that significant portions of the Act and its attendant regulations are dormant, with no significant applications. The slightly speculative claim is that only a few provisions of the Act as applied were necessary (or even important) to the rise of broadband internet service to its current predominance—most significantly, provisions on pole attachments that allowed for deployment of broadband capacity and provisions allowing the FCC to allocate wireless frequencies, which gave the FCC power to create flexible licenses that allowed licensees to offer wireless broadband. Section 230 of the 1996 Act and the FCC’s net neutrality regulations may have played a role, but their centrality is (at best) uncertain. Provisions preempting state regulation and providing for federal non-regulation may well have played an important role, but that is not an argument for the importance of a particular regulation; it is an argument for the importance of the absence of regulation. This leads to my third claim. I think the arguments for overhauling the Act have become weaker, not stronger, over the last twenty-five years, because most of the Act’s elements are becoming less important as telecommunications moves toward the seemingly inevitable dominance of broadband internet service.

Citation

Stuart Minor Benjamin, Ships Passing in the Night: The Communications Act and the Convergence on Broadband, 37 Berkeley Technology Law Journal 527-566 (2022)