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Happy 80th Anniversary Communications Act: Time for a Rewrite

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The Communications Act of 1934 still governs telecommunications in America. While updated periodically, it has not been modernized in 18 years. Given the pace that technology changes these days, 18 months is a long time. From phones to television to technology that hadn't previously existed, a lot has changed but dated regulations continue to view the communications sector in silos for distinct services. Recognizing the need for an update, theFederal Communications Commission (@FCC) and both sides of the legislative branch - led by the HouseCommittee on Energy and Commerce - have been studying possible updates (#CommActUpdate).

"Voice, broadcast and video are just apps delivered over competing platforms: cable, copper, fiber, wireless," said the nonprofit advocates TechFreedom. "It isn't just "Voice over IP." It's everything over IP. Yet the law hasn't kept pace."

Backstory. The Communications Act of 1934 consolidated telephone, telegraph, and radio regulations into a single statute and created the FCC. The regs assumed a monopoly in telephone. Updates since then include:

● In 1967, the Act was expanded to include television broadcasting.

● An additional title was added in 1984 covering cable television.

● The Cable Television Consumer Protection and Competition Act of 1992 aimed to foster competition, diversity, and localism in the cable television industry.

● The 1993 Omnibus Budget Reconciliation Act classified cellular service and authorized the FCC to conduct auctions for spectrum licenses.

● The Telecommunications Act of 1996 opened both the local and long-distance markets. The law distinguished that "information" services would be largely unregulated while "telecommunications" services would remain highly regulated.

● The 2005 Deficit Reduction Act included the Digital Television Transition, which shifted broadcast television from analog transmission to digital.

● In 2012, the FCC's spectrum auction authority was expanded by the Middle Class Tax Relief and Job Creation Act.

The 1996 Telecom Act did clear the way for competition in some respects, but it also preserved the siloed approach of the 1934 Act. The FCC continues to struggle to apply the 1996 Act in a very different world where voice, video, and information apps are delivered over converging platforms.

Mobile broadband, and our reliance on it for day-to-day needs, has come a long way since 1996. While the U.S. is the clear global leader in 4G LTE adoption, continued leadership depends on the continued release of spectrum to commercial networks through the reassignment of government applications, auctions, and the transfer of licenses on the secondary market.

Connectivity Matters. Device costs have plummeted so rapidly that connectivity is now often the limiting education factor when it comes to equitable access to digital learning. We recently outlined 33 ways broadband is boosting learning. In short, connectivity powers personalized learning, makes connections with the world, helps meet special needs, powers professional work products, supports professional learning, boosts productivity, and supports community and collaboration.

Connectivity demands are growing exponentially. The State Education Technology Directors Association estimated an order of magnitude growth between 2014 and 2017. Increased demand is being driven by more school provided access devices and more students bringing their own devices; rapidly expanding use of adaptive learning systems, learning games, and video instruction resulting in most students spending more time in high bandwidth activities every day at school and at home; and growth in part time online learning (also called course access). Extended learning options, virtual mentoring, and enhanced career education are a few of the emerging issues that will continue to push broadband requirements.

K-12 connectivity purchasers have historically been school districts. However, it is becoming a more varied demand side landscape with charter schools, managed school networks, statewide online learning providers, software as a service providers, tutoring services, and families all playing a role in digital delivery.

The Aspen Institute Task Force on Learning and Internet described a vision for this emerging connected learning landscape including five essential principles:

1. Learners need to be at the center of new learning networks.

2. Every student should have access to learning networks.

3. Learning networks need to be interoperable.

4. Learners should have the literacies necessary to utilize media as well as safeguard themselves in a digital age.

5. Students should have safe and trusted environments for learning.

Twenty years ago, educational options for many families were limited to their local school but the Aspen report outlines a future where learning is a personalized bundle of services from multiple providers. Connectivity will grow in importance as student access ratios continue to improve and as the percentage of time in high bandwidth activities expands.

Why K-12 Needs a #CommActUpdate. "Students and teachers need access to fast, reliable Internet, and today 63% of public schools in America lack the Internet speeds needed to prepare our students to compete in today's economy," according to EducationSuperHighway.

A few states have made educational access to broadband a priority. The federal update to E-Rate will continue federal investment but at levels below what leading education advocacy groups recommended. State efforts and and E-Rate update fall short of meeting the exponentially growing demand for learning related connectivity.

Connectivity is important to education today and it is central to the shift from education as a place to learning as a service. The growing web of providers and a generation of mobile learners require dynamic provisioning and competitive pricing. The solution is low cost seamless access at school and at home--and that is most likely to be achieved in a diverse multi-provider environment achieved through an rewrite of the Communication Act.

The FCC has proposed regulating broadband using a public utility model. But broadband "isn't a "natural monopoly" and it doesn't require the kind of oversight originally developed for railroads," explains TechFreedom, "The industry is rapidly evolving and competition is thriving as never before, thanks to a regulatory light touch and despite lingering federal and local obstacles." Competition continues to drive down costs and should be encouraged. Rather than the utility model, "Broadband should be regulated like most other industries: through antitrust and consumer-protection laws," suggests TechFreedom.

Recommendations. FCC Chairman Tom Wheeler said, "Changes in technology, business models, and consumer preferences have presented us with circumstances that are radically different from those that prevailed a generation ago. With widespread deployment of digital technology and high-speed broadband networks, wired and wireless have led us to an environment we could not have imagined when our communications laws were written.

Education is shifting from low to high bandwidth needs and from a single purchaser to a multi-provider environment. Matching the demands of this shift requires more competition, rational allocation, and room for innovation:

Scratch built, no silos. The new law should be built from scratch using principles of consumer protection, promotion of competition, and encouraging investment and innovation. All three require removal of regulatory silos. Historical service classifications such as telephone and cable are outdated constructs that often favor one competitor over another without good reason. Randolph May, Free State Foundation, explains, "telephone companies, cable operators, wireless providers, satellite operators, and fiber firms all compete against each other, utilizing their own different broadband platforms, to provide consumers with various mixes of voice, video and data services."

Rational allocation. "The spectrum status quo is irrational," said Richard Bennett, AEI, who outlined technical principles of spectrum allocation including promoting new technologies using rule modifications and allow upgrades without permission; repacking spectrum when technologies change; rewarding assignments that support multiple uses and dynamically adjust demand; promoting competition by allocating spectrum to competing systems; and managing the process with a new Federal Spectrum Service. Given the rapid growth of mobile broadband use at home and at school, the FCC should adopt spectrum policy that emphasizes licensed spectrum in bands suited for mobile broadband.

Adjudicate, don't regulate. The increasingly competitive communications industry should have a multi-stakeholder approach, where companies are free to partner and innovate unless an arrangement is found to be in conflict with consumer welfare. A competition-based standard would require the FCC to determine before regulating that a market failure was harming consumers. Such policies will allow innovative new education technology to partner with different providers in experimental ways to deliver the portfolio of digital learning services detailed above. Only a sector of the economy that has a level playing field for players will be able to encourage the partnerships and connections necessary to bring these innovations to fruition. The Information Technology and Innovation Foundation suggests that achieving broad social welfare and consumer protection requires a balance a between the push for more competition with the need to maintain and create an efficient broadband industry structure. This balance requires more adjudication than regulation.

"Modernizing the Communications Act, is one that deserves the top spot on the Washington tech agenda," according to former congresswoman Eva Clayton. "It's time for Congressional leadership on both sides of the aisle to work together and move our nation's communications laws into the 21st century"

The new law should be built from scratch and should consider the growing needs of the education sector by encouraging competition, making smart spectrum allocation, and leaving room for innovation.

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