FCC Forced to Get ‘Creative’ on Regulation of New Technology, Clyburn Says

An aging Communications Act framework is forcing the FCC to get more “creative” to keep regulating new technologies, Commissioner Mignon Clyburn said on an episode of C-SPAN’s The Communicators, which was set for telecast Saturday. Clyburn also said she anticipates “some action” on media ownership rules “in the coming weeks,” but she declined to go into detail about what such an item might contain. The commission has recently discussed relaxing the newspaper-broadcast cross-ownership rule in the local market. “These are things that we have been talking about for a number of months,” Clyburn said. “I am looking forward to whatever the chairman … circulates.” The agency is “due to conduct the quadrennial review [on the topic] and when we are ready to move, we will let the public know,” an FCC spokesman said.

"It’s becoming more and more of a challenge” to regulate modern telecom technologies under the old framework, Clyburn said. “We are increasingly forced to be more creative in terms of how we deliberate.” Some new methods of regulating include engaging in more memorandums of understanding with other agencies to assess the effect of new technologies on consumers, she said. IP transition trials, approved by a unanimous commission last month (CD Jan 31 p1), are another tool, she said. “We may have some challenges as relates to the existing framework, but we all mutually recognize that things are changing, things are evolving, and it’s in everyone’s best interest to retrofit and work together for the greater good."

Clyburn hopes the way she got carrier agreement on 700 MHz interoperability will become a model for getting things done at the commission. In late July (CD Aug 1 p1) “we sat in a room with a couple of dozen or so of our closest friends -- wink wink -- and we entered into a very serious series of conversations about ‘why not?'” What the FCC saw as a neutral observer was that “the parties were really not that far apart; they were just so firmly entrenched in their positions,” Clyburn said. The FCC was able to help broker a voluntary agreement that’s “already providing dividends for those in rural areas,” and a “significant build” in areas that were “basically landlocked.” It’s also important that “we did not take a route that will be challenged in court,” she said. Clyburn hopes that smaller, regional providers will enable competition to become stronger as their footprint gets wider. She expects 700 MHz interoperability to “fuel the type of competition needed for smaller players to become larger."

Clyburn chose to look on the bright side when asked about her reaction to the U.S. Court of Appeals for the D.C. Circuit having granted a partial stay of the prison phone calling rules (CD Jan 14 p3), which were approved while she was acting chairwoman. Clyburn is “really happy” that the court decision didn’t affect the interstate rates that will take effect Tuesday, she said. In such a “highly concentrated” industry, with a dearth of competition and two providers that have more than 80 percent of the market, “that of course screams loudly to me for regulatory oversight,” she said.

Clyburn said she hopes for permanent interstate prison calling rates by “mid-summer” or “early fall.” Clyburn also stated her willingness to get involved in intrastate ratemaking if needed. The commission plans to work with states to ensure that “they embark on a pathway” to reforming in-state rates, she said. “If not, then we will have to review our options when it comes to intrastate engagement."

Low minority media ownership is “absolutely a concern” for Clyburn, she said. To Clyburn, the Internet and other media platforms “augment,” but are not a substitution for, traditional media ownership by minorities. “I will not be satisfied until there are pathways to parity,” she said. “It is important, by way of programming and ownership, that the American experience is reflected.” She said she’s “reflective” about the idea of having the commission review the broadcast licenses of individual companies, in order to encourage minority representation. She said she welcomes “robust engagement from the public in terms of guidance.”

Clyburn was optimistic on the FCC’s continued authority over net neutrality. The D.C. Circuit upheld the agency’s Telecom Act Section 706 authority over broadband (CD Jan 15 p1) and its transparency rules, as well as “laid out a significant roadmap,” she said. The court said “if you do not want to make any changes” on how to classify the Internet, then the commission can look at the data roaming order as a possible pathway forward. “A lot of legal scholars are still debating on what it did not do. I am concentrating on what it did do. It still provides the public a transparent opportunity to engage with their providers, and I think that’s a good thing.”