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How A Trump FCC Could Deregulate The Communications Sector
Donald Trump Jr, Eric Trump, President-Elect Donald Trump, Melania Trump, Tiffany Trump, and Ivanka Trump at the grand opening of the Trump International Hotel in Washington, DC on October 26, 2016. (MANDEL NGAN/AFP/Getty Images)

How A Trump FCC Could Deregulate The Communications Sector

Harold Furchtgott-Roth & Arielle Roth

Although communications law reform was never a focal point of President-elect Donald Trump’s campaign, he has spoken at length about the harms of needless regulation on various sectors of the American economy, and has shown antipathy towards meddling by the Federal Communications Commission in the telecommunications industry.

While many have called for comprehensive reform of the Communications Act to account for incredible technological change over the past two decades, the President-elect should know that a rewrite of federal telecommunications law is not necessarily crucial for significant deregulation of the telecommunications industry. Small but important changes would greatly reduce the FCC’s interference and promote innovation and investment.

One important starting point by a Republican-controlled FCC would involve adherence to Section 11 of the federal Communications Act, which mandates biennial review of agency regulations and the repeal or modification of any regulation no longer determined by the Commission to be “necessary in the public interest.” Whereas many other federal agencies require laborious and time-consuming procedures to change and reduce regulation, the FCC already has a built-in statute-mandated process for repealing rules. After all, in a constantly evolving industry like telecommunications, regulations quickly become obsolete and require frequent review to remain in lockstep with technology.

Despite the law’s biennial review requirements, the FCC has never conducted a review of many of its rules, much less all of its rules, even once, and certainly not once every two years. On the contrary, the FCC has repeatedly flouted Section 11, adopting new regulations every year, while seldom repealing any.

Federal communications regulations span several thousand pages. While some are no doubt necessary for the smooth functioning of communications markets, many are obsolete. Regulation of telegraphy and references to Morse code remain littered throughout the federal rules. The CFR still requires that telegraph operators take an FCC licensing exam.

But regulatory anachronisms permeate far beyond 19th century telegraphy rules and result in debilitating compliance costs for businesses. In the absence of FCC fulfillment of Section 11, companies are required to comply with archaic rules designed for incumbent local phone companies in the aftermath of the AT&T divestiture, or otherwise submit tedious forbearance petitions. And the staggering need for FCC forbearance from Title II in the 2015 Open Internet Order makes attests to how antiquated the common carriage regime has become.

That reality ought to change with a new FCC blessed with the will to clean up Title 47 of the Code of Federal Regulations. To a large extent, the Trump victory represents Americans’ disillusionment with federal agencies’ accountability to voters and the rule of law. Faithful adherence to Section 11 is an important step in regaining the citizenry’s trust in government and proving that the act of voting is not futile.

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