Congress Needs to Completely Rewrite Communications Law, Tauke Says

"Generally, I manage to keep it well hidden, but I do have sympathy for the FCC,” Tauke said. “It has a virtually impossible task because it is charged with administering and implementing the laws enacted by the Congress. The problem of course is that laws enacted by Congress are obsolete. They were written before convergence, before competition and before consumers had choice.” Industry needs to get past the point of just “decrying” the current system, he said: “We really have to start focusing on how you build a new infrastructure that properly governs this space.”

In the Internet age, the law still has an important role in preventing fraud and child porn, protecting intellectual property and ensuring competition, Tauke said: “Virtually everybody would agree with that.” Tauke suggested that reform must be built around four principles, starting with the recognition that rules must be federal. “If ever there is interstate commerce, it is the Internet,” he said. “We cannot continue to have state-by-state, or locality-by-locality, regulation or taxation of this space. … It just makes it enormously complex and is very unfriendly to the consumers.” Second, at the federal level a single agency should have oversight, he said. For consumers, when their privacy is violated, “they don’t care whether it was the carrier or the search engine or the operating system … they just want it fixed and they want to have one place to go.”

The law should also provide clear guidance on when the government should step in based on “demonstrable harm” suffered by consumers, Tauke said. “If there’s fraud, government should intervene,” he said. “If there’s anticompetitive activity, government should intervene.” Finally, rules for the Internet should be built around industry standards with some government oversight, he said.

Tauke told reporters later that passing legislation will be a tough fight. “It does take a long time,” he said. Many members of Congress “have done more work than is visible at this juncture,” he said. “Optimistically, I think it would be feasible in the next Congress, but I also recognize that sometimes it takes a while to move things through the process.” One usually has to think in terms of years or even decades when contemplating legislation, Tauke said. “Hopefully we're talking about years,” he said.

Comcast President-Washington Kyle McSlarrow told us he agrees getting legislation through Congress won’t be easy. “If Tom and I sat down we could write the bill, we would agree, substantively on every point,” he said. “You just never know how the legislative process goes and this is really, really hard -- not that we shouldn’t start having the conversation now. We should. But no telecom bill has been less than several years in the making. It’s not going to be quick."

Both McSlarrow and Tauke spoke on a panel on “Convergence, Competition and Consumer Choice.” Also on the panel, former FCC Chief Economist Michelle Connolly was sharply critical of the current regulatory regime. “The regulatory process is far too static,” she said. “It’s based on old technologies. It’s not technologically neutral.” Regulation always creates “entitled groups” that “lobby really hard whenever you start talking about reforming anything,” she said.

"My life, if anybody ever wrote my life story, would be about competition,” said CTIA President Steve Largent, “Regulation, even legislation, cannot compete with a competitive, open, free market.”