Order Code RL32949
Communications Act Revisions:
Selected Issues for Consideration
Updated August 7, 2007
Angele A. Gilroy
Coordinator
Resources, Science, and Industry Division

---

Communications Act Revisions: Selected Issues for
Consideration
Summary
The passage of the 1996 Telecommunications Act (P.L. 104-104) resulted in
a major revision of the Communications Act of 1934 (47 U.S.C. 151 et seq.) to
address the emergence of competition in what were previously considered to be
monopolistic markets. Although less than a decade has passed, a consensus has
grown that existing laws that govern the telecommunications and broadcasting
sectors have become inadequate to meet the Nation’s changing telecommunications
environment. Technological changes such as the advancement of Internet technology
to supply data, voice, and video, the transition to digital television, as well as the
growing convergence in the telecommunications sector have, according to many
policymakers, made it necessary to consider another “rewrite” or revision, of the
laws governing these markets.
In the 109th Congress efforts to pass a comprehensive telecommunications
measure, while successful in the House (H.R. 5252), did not make it to the Senate
floor for consideration. The 110th Congress has held hearings on a wide range of
topics including broadband deployment, universal service fund reform, FCC
oversight, and public safety communications. Unlike in the 109th Congress however,
where energy was focused on the passage of a single comprehensive
telecommunications reform measure, it appears that the 110th Congress, to date, is
focusing on more narrowly targeted incremental revisions which may be passed as
stand-alone measures or in conjunction with other legislative vehicles. Regardless
of the outcome of legislative proposals, however, the 110th Congress is taking, and
is expected to continue to take, an active role in examining and debating the issues
that such a revision may entail.
This report provides an overview of selected topics which the 110th Congress
has begun, or is likely, to address in its examination of telecommunications issues.
While far from a definitive list, the issues selected are wide-ranging and touch upon
topics central to the telecommunications reform debate. The issues included in this
report cover: broadband Internet regulation and access; broadcast indecency; digital
television transition; Federal Communications Commission structure and reform;
media ownership rules; municipal deployment of broadband; public safety
communications, the “savings clause” and monopoly issues; spectrum auctions; and
universal service fund reform.
This report addresses major issues, rather than addressing specific legislative
activity. The underlying references to CRS products, included at the end of each
issue, should be used to expand upon the issue, update relevant events and, where
appropriate, track Congressional activity. This report will be updated occasionally.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Broadband Internet Regulation and Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Broadcast Indecency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Digital Television Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Federal Communications Commission Structure and Reform . . . . . . . . . . . . . . . 5
Media Ownership Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Municipal Deployment of Broadband . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Public Safety Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The “Savings Clause” and Monopoly Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Spectrum Auctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Universal Service Fund Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

---

Communications Act Revisions: Selected
Issues for Consideration
Introduction
The Telecommunications Act of 1996 (the 1996 Act), signed into law on
February 8, 1996 (P.L. 104-104), represented the first major rewrite of our nation’s
telecommunications policy. The 1996 Act redefined and recast the Communications
Act of 1934 (1934 Act) (47 U.S.C. 151 et seq.) to address the emergence of
competition in what were previously considered to be monopolistic markets. Despite
its relatively recent enactment, however, a consensus has been growing that the 1996
Act fails to adequately address the convergence and technological changes now
facing the telecommunications and broadcasting sectors. Although many
policymakers (as well as the popular and trade press) have labeled efforts to revise
existing telecommunications law “the rewrite or revision of the 1996 Act,” in
actuality the revisions being considered are likely to go beyond what is included in
the 1996 Act and will add to and modify the underlying statute which is the 1934
Act.
In the 109th Congress efforts to pass a comprehensive telecommunications
measure, while successful in the House (H.R. 5252), did not make it to the Senate
floor for consideration. The 110th Congress has held hearings on a wide range of
topics including broadband deployment, universal service fund reform, FCC
oversight, and public safety communications. Unlike in the 109th Congress however,
where energy was focused on the passage of a single comprehensive
telecommunications reform measure, it appears that the 110th Congress, to date, is
focusing on more narrowly targeted incremental revisions which may be passed as
stand-alone measures or in conjunction with other legislative vehicles. Regardless
of the outcome of legislative proposals, however, the 110th Congress has taken, and
is expected to continue to take, an active role in examining and debating the issues
that such a revision may entail.
This report provides an introduction to selected issues which the 110th Congress
has begun, or is likely, to address as it continues to examine possible revision of
telecommunications law. While far from an exhaustive list, the following issues
have been selected for discussion due to their relevance and prominence in the
current telecommunications reform debate: broadband Internet regulation and access;
broadcast indecency; digital television transition; Federal Communications
Commission structure and reform; media ownership rules; municipal deployment of
broadband; public safety communications; the “savings clause” and monopoly issues;
spectrum auctions; and universal service fund reform. Other issues such as taxation,
privacy, and copyright, to name a few, while of equal importance, go beyond the
scope of this report and may be found in other CRS products. This report is not a

---

CRS-2
tool for tracking legislation. The underlying references to CRS products included at
the end of each issue, should be used to update relevant events and, to track
Congressional activity. This report will be updated occasionally.
Broadband Internet Regulation and Access1
Broadband Internet access gives users the ability to send and receive data at
speeds far greater than conventional “dial up” Internet access over existing telephone
lines. Broadband technologies — cable modem, digital subscriber line (DSL), fiber,
satellite, and wireless Internet — are currently being deployed nationwide primarily
by the private sector. While the number of new broadband subscribers continue to
grow, some areas of the nation, particularly rural and low-income communities,
continue to lack sufficient access to high-speed broadband Internet service. In order
to address this problem, the 110th Congress is considering the scope and effect of
federal broadband financia1assistance programs (including universal service and the
broadband loan and grant programs at the U.S. Department of Agriculture), and the
impact of telecommunications regulation and new technologies on broadband
deployment.
Some policymakers, believing that disparities in broadband access across
American society could have adverse economic and social consequences on those left
behind, assert that the federal government should play a more active role to avoid a
“digital divide” in broadband access. One approach is for the federal government to
collect better broadband deployment data and to provide financial assistance to
support broadband in underserved areas. Others, however, question the reality of the
“digital divide,” and argue that federal intervention in the broadband marketplace
would be premature and, in some cases, counterproductive. The regulatory treatment
of broadband technologies, whether offered by traditional or emerging providers, or
incumbents or new entrants, has also become a major focal point in the debate.
Whether present laws and subsequent regulatory policies are necessary to ensure the
development of competition and its subsequent consumer benefits, or are overly
burdensome and only discourage needed investment in and deployment of broadband
services, continues to be at issue. The policy debate focuses on a number of issues
including the extent to which legacy regulations should be applied to traditional
providers as they enter new markets; the extent to which legacy regulations should
be imposed on new entrants as they compete with traditional providers in their
markets; and, the appropriate treatment of new and converging technologies. What,
if any, role regulators should play to ensure the Internet remains open to all, often
referred to as “open access” requirements or “net neutrality” is a major and
contentious part of the dialogue.
Finally, emerging broadband technologies — such as fiber, wireless (including
“3G”, “wi-fi” and “Wimax”) and broadband over power lines (BPL) — continue to
be developed and/or deployed and have the potential to affect the regulatory and
market landscape of broadband deployment. Congress and the FCC will likely
1 Lennard G. Kruger, Specialist in Science and Technology, and Angele A. Gilroy,
Specialist in Telecommunications Policy, Resources, Science, and Industry Division

---

CRS-3
consider policies to address the emergence of these and other new broadband
technologies.
For Further Information
CRS Report RL33542, Broadband Internet Regulation and Access: Background
and Issues, by Angele A. Gilroy and Lennard G. Kruger.
Broadcast Indecency2
Two prominent television events placed increased attention on the Federal
Communications Commission (FCC) and the broadcast indecency statute that it
enforces. The airing of an expletive by Bono during the 2003 Golden Globe Awards,
as well as the “wardrobe malfunction” that occurred during the 2004 Super Bowl
half-time show, gave broadcast indecency prominence in the 108th and 109th
Congresses, and resulted in the enactment of P.L. 109-235 (2006), which increased
the penalties for broadcast indecency by tenfold.
Federal law makes it a crime to utter “any obscene, indecent, or profane
language by means of radio communication” (18 U.S.C. § 1464). Violators of this
statute are subject to fines and imprisonment of up to two years, and the FCC may
enforce this provision by forfeiture or revocation of a broadcaster’s license. The FCC
has found that, for material to be “indecent,” it “must describe or depict sexual or
excretory organs or activities,” and “must be patently offensive as measured by
contemporary community standards for the broadcast medium.” The federal
government’s authority to regulate material that is indecent but not obscene was
upheld by the Supreme Court in Federal Communications Commission v. Pacifica
Foundation, which found that prohibiting such material during certain times of the
day does not violate the First Amendment.

In 1992, Congress enacted P.L. 102-356 (47 U.S.C. § 303 note), section 16(a)
of which, as interpreted by the courts, requires the FCC to prohibit indecent material
on broadcast radio and broadcast television from 6 a.m. to 10 p.m. Under P.L. 109-
235, indecent broadcasts are now subject to a fine of up to “$325,000 for each
violation or each day of continuing violation, except that the amount assessed for any
continuing violation shall not exceed a total of $3,000,000 for any single act or
failure to act.” Fines may be levied against broadcast stations, but not against
broadcast networks. The FCC appears to have the statutory authority to fine
performers as well (up to $32,500 per incident), but has taken the position that
“[c]ompliance with federal broadcast decency restrictions is the responsibility of the
station that chooses to air the programming, not the performers.”
The federal restriction on indecent material applies only to broadcast media, and
this stems from the fact that there are a limited number of broadcast frequencies
available and that the Supreme Court, therefore, allows the government to regulate
broadcast media more than other media. In addition, the Court noted in Pacifica that
2 Henry Cohen, Legislative Attorney, American Law Division.

---

CRS-4
broadcast media have a “uniquely pervasive presence” and are “uniquely accessible
to children.” Since 1978, however, when the Court decided Pacifica, cable and
satellite media have become more pervasive, thereby rendering broadcast media less
uniquely pervasive. The Supreme Court, however, continues to cite Pacifica with
approval. It has held, however, that cable television is entitled to full First
Amendment protection, so that any governmental restrictions on the content of its
programming must satisfy the same strict scrutiny by the courts that governmental
restrictions on the content of print media must satisfy. It therefore seems unlikely
that it would be constitutional for Congress to limit indecent material on cable or
satellite media. It also seems uncertain whether the FCC’s application of the
indecency restriction to Bono’s expletive was constitutional, as the Supreme Court
in Pacifica left open the question whether broadcasting an occasional expletive
would justify a sanction.
In 2006, the FCC took action against four other television broadcasts that
contained fleeting expletives, but, on June 4, 2007, in Fox Television Stations, Inc.
v. FCC, the U.S. Court of Appeals for the Second Circuit found “that the FCC’s new
policy regarding ‘fleeting expletives’ represents a significant departure from
positions previously taken by the agency and relied on by the broadcast industry. We
further find that the FCC has failed to articulate a reasoned basis for this change in
policy. Accordingly, we hold that the FCC’s new policy regarding ‘fleeting
expletives’ is arbitrary and capricious under the Administrative Procedure Act.”
Having overturned the FCC policy on statutory grounds, the court had no occasion
to decide whether it also violated the First Amendment. It explained, however, why
it was “skeptical that the Commission can provide a reasonable explanation for its
‘fleeting expletive’ regime that would pass constitutional muster.”
For Further Information
CRS Report RL32222, Regulation of Broadcast Indecency: Background and Legal
Analysis, by Henry Cohen.
Digital Television Transition3
Digital television (DTV) is a new service representing the most significant
development in television technology since the advent of color television in the
1950s. DTV can provide sharper pictures, a wider screen, CD-quality sound, better
color rendition, multiple video programming or a single program of high definition
television (HDTV), and other new services currently being developed. The
Telecommunications Act of 1996 (P.L. 104-104) provided that initial eligibility for
DTV licenses issued by the Federal Communications Commission (FCC) would be
limited to existing broadcasters. Because DTV signals cannot be received through
existing analog televisions, the FCC decided to phase in DTV over a period of years,
so that consumers would not have to immediately purchase new digital television sets
or converters. Broadcasters were given new spectrum for digital signals, while
3 Lennard G. Kruger, Specialist in Science and Technology, Resources, Science, and
Industry Division.

---

CRS-5
retaining their existing spectrum for analog transmission so that they could
simultaneously transmit analog and digital signals to their broadcasting market areas.
Initially Congress and the FCC set a target date of December 31, 2006, for
broadcasters to cease broadcasting their analog signals and return their existing
analog television spectrum to be auctioned for commercial services (such as
broadband) or used for public safety communications. However, the Balanced
Budget Act of 1997 (P.L. 105-33) allowed a station to delay the return of its analog
spectrum if 15% or more of the television households in its market did not subscribe
to a multi-channel digital service and did not have digital television sets or
converters. Given the slower-than-expected pace at which digital televisions have
been introduced into American homes, and given the impetus to reclaim analog
spectrum for commercial uses and public safety, the 109th Congress enacted the
Deficit Reduction Act of 2005 (P.L. 109-171), which established a “date certain”
digital transition deadline of February 17, 2009.
A key issue in the Congressional debate over the digital transition continues to
be addressing the millions of American over-the-air households whose existing
analog televisions will require converter boxes in order to receive digital signals
when the analog signal is turned off. P.L. 109-171 allocated up to $1.5 billion for a
digital-to-analog converter box subsidy program to be administered by the
Department of Commerce. The 110th Congress is closely overseeing the converter
box program. Issues include whether the $1.5 billion allocated to the program is
sufficient to meet the needs of all requesting households, whether consumer
education efforts among government and private stakeholders are adequate, and
whether the program is sufficiently targeted to vulnerable populations. Additional
digital transition issues include whether Congress should mandate or permit “must
carry” requirements for digital multicasts, “downconversion” of broadcasted digital
to analog signals for cable and satellite households, and copyright protection
technologies such as the “broadcast flag” and the “analog hole.”
For Further Information
CRS Report RL31260, Digital Television: An Overview, by Lennard G. Kruger.
Federal Communications Commission Structure
and Reform4
The Federal Communications Commission (FCC), an independent Federal
agency directly responsible to Congress, is charged with regulating interstate and
international communications by radio, television, wire, satellite, and cable. Since
it was established by the Communications Act of 1934, Congress has periodically
called for varying degrees and types of FCC reform. The FCC has taken internal
actions to restructure itself in an attempt to improve its ability to oversee and regulate
4 Patricia Moloney Figliola, Specialist in Telecommunications and Internet Policy,
Resources, Science, and Industry Division.

---

CRS-6
the changing telecommunications sector. However, some policymakers believe that
the FCC has not met the needs of a changing telecommunications industry. If
Congress undertakes a significant effort to revise existing telecommunications law,
it could consider addressing provisions to further modify the FCC’s structure and
duties.
Suggestions for reform have ranged from modest reorganization to total agency
abolishment. Other proposals include replacing the five commissioners with a single
“telecommunications czar” and downsizing the agency by eliminating its regulatory
functions and transforming it into an enforcement agency. More recently, the
proposals for reform that have been suggested can be broadly grouped into two
categories: (1) procedural changes made within the FCC or through Congressional
action that would affect the agency’s day-to-day operations, or (2) substantive policy
changes requiring Congressional action that would affect how the agency regulates
different services and industry sectors.
Some experts have suggested a number of procedural changes. One suggestion
is to limit the time between the adoption and actual public release of an order. For
example, the FCC often adopts orders and issues press releases with a summary of
the order weeks or even months prior to releasing the order itself. Such a delay,
critics claim, often results in confusion among the affected industry segments. Some
policymakers are discussing instituting a “shot clock,” which would require the FCC
to issue the actual order within a set time frame once the order is adopted and a press
release issued. Another procedural change which has gained support from a variety
of policymakers, calls for the amendment of the Sunshine Act (P.L 94-409)
requirements for meetings among commissioners. Current law limits to two the
number of commissioners that may meet outside the construct of an “official open
meeting.” While the intent of the law is to promote open discussion of issues, some
contend that it may actually hinder discussion and inhibit the ability to forge
compromises. Other procedural changes include limiting the time allowed to
complete actions on license transfers for mergers/sales and license renewals and
developing new and stronger enforcement mechanisms.
Even with what appears to be strong Congressional interest in FCC reform at
this time, the substantive changes which some believe are needed to enable the FCC
to effectively regulate the converged telecommunications industry may remain
difficult to achieve. Without a congressional mandate for change, the FCC may find
it difficult to conduct its work under the current structure and restrictions of the 1934
Act. If Congress chooses to revise the 1934 Act it may wish to consider what
changes, if any, are needed to enable the FCC to perform its duties in a changing
telecommunications environment.
For Further Information
CRS Report RL32589, The Federal Communications Commission: Current Structure
and its Role in the Changing Telecommunications Landscape, by Patricia
Moloney Figliola.

---

CRS-7
Media Ownership Rules5
The Federal Communications Commission’s (FCC’s) media ownership rules
are intended to foster the three primary goals of U.S. media policy — competition,
diversity of voices, and localism. These rules set restrictions on the number of
broadcast television or radio stations an entity can own or control in a single market;
the “cross-ownership” of newspapers and broadcast stations or of television and radio
stations within a single market; and the number of broadcast television stations a
single network can own nationally. The assumption underlying these rules is that
undue consolidation of media ownership could harm competition, diversity, or
localism. In 2003, the FCC adopted new rules that generally relaxed multi-
ownership restrictions. The 108th Congress modified the national television
ownership rule reducing the 45% ownership cap adopted by the FCC to 39%. The
U.S. Court of Appeals for the Third Circuit stayed and remanded the other FCC rules.
In June 2005, the U.S. Supreme Court declined to consider an industry appeal of a
case that overturned the FCC’s rules. In June 2006, the FCC adopted a Further
Notice of Proposed Rulemaking seeking comment on how to address the issues
raised by the Third Circuit and initiating a statutorily required quadrennial review of
all of its media ownership rules, but did not propose specific rule changes. In
November 2006, the FCC announced that it had commissioned 10 economic studies
of media ownership as part of its review of the media ownership rules; these studies
were released on July 31, 2007 and the FCC is seeking public comment on them. In
a separate but related action the FCC, on August 1, 2007, released a Second Notice
of Proposed Rulemaking requesting public comment on several proposals to increase
minority ownership of media outlets.
Congress may choose to provide guidance as the FCC rewrites its rules to meet
the requirements of the Appeals Court. In the 109th Congress, a bill was voted out
of the Senate Commerce Committee that would have required the FCC to seek public
comment on the specific language of any proposed media ownership rule changes
before adopting the modified rule.
Some parties have argued that the rules now in place are not in the public
interest because they block mergers that might be beneficial. For example, there may
be situations in which a small-market television station could not afford to provide
in-depth news coverage on its own, but could do so if it were allowed to combine its
news gathering facilities and staff with a newspaper in the same market. More
broadly, these parties claim that greater consolidation than is allowed under current
rules would yield a more financially stable media sector better able to serve local
communities. They argue that the Internet, cable television, satellite television, and
satellite radio now provide enough independent media outlets in most locations to
ensure competition, diversity of voices, and localism even if further consolidation
were to occur.
Others have argued that loosening current media ownership restrictions would
result in mergers that would directly reduce the number of independent voices, lessen
5 Charles B. Goldfarb, Specialist in Industrial Organization and Telecommunications Policy,
Resources, Science, and Industry Division.

---

CRS-8
competition, and reduce local programming. They claim that the new technologies
— Internet, cable, and satellite television and radio — provide very little local
programming.
One key aspect of this debate is whether it is better to review proposed media
mergers by using a “bright-line” rule that allows a combination to occur so long as
the merged entity would not exceed the maximum number of media outlets an entity
may own or control in a market; or by performing a case-by-case analysis of the
market impact of each proposed merger. Proponents of a bright-line rule argue that
such an approach provides certainty to the merging parties, as opposed to the
uncertainty associated with a lengthy regulatory review. Proponents of case-by-case
analysis claim that today’s media marketplace is characterized by very large,
vertically integrated companies that may own or control broadcast stations and
networks, cable channels, program production studios, and even satellite or cable
distribution networks. They argue that a simple bright line test fails to identify the
unique impact on competition, diversity, and localism of a merger involving a large
vertically integrated company.
Since there are other public policies also intended to foster competition,
diversity, and localism — for example, utilizing the spectrum more efficiently to
create additional voices, fostering the development and deployment of new
technologies that may provide additional voices, maintaining public interest
obligations on existing broadcast licenses to foster localism — one part of the debate
has been how the ownership rules and these other policies can work to reinforce,
supplement, or substitute for one another.
For Further Information
CRS Report RL31925, FCC Media Ownership Rules: Current Status and Issues
for Congress, by Charles B. Goldfarb.
Municipal Deployment of Broadband6
One purpose of the Telecommunications Act of 1996 was to foster and
encourage competition among providers of telecommunications services. In the 1996
Act, Congress barred states from “prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service.” (47 U.S.C. 253 (a)). Some states
have in recent years passed laws that prohibit or limit local governments from
providing telecommunications services. An effort to challenge such a law in Missouri
by municipalities offering local communications services in the state was heard
before the U.S. Supreme Court in 2004 (Docket Number 02-1238). The Court ruled
that “entity” was not specific enough to include state political divisions. If Congress
wished to specifically protect both public and private entities, they could do so by
amending the language of the law. This decision, combined with the steady
improvement in broadband communications technologies, has provided fuel for a
6 Linda K. Moore, Analyst in Telecommunications and Technology Policy, Resources,
Science, and Industry.

---

CRS-9
policy debate about access to broadband services owned or sponsored by
municipalities for the benefit of their communities. The central debate is whether
municipal broadband services are part of essential infrastructure — like electrical
power or water — with many benefits, including stimulus to the local economy, or
whether they provide unfair competition that distorts the marketplace and
discourages commercial companies from investing in broadband technologies.
The two main broadband technologies that are particularly attractive to
communities (in part because they support existing community services such as
Internet access for schools and communications for public safety) are fiber-optic-
based networks and wireless access. The spread of wireless access to the Internet —
commonly referred to as Wi-Fi — and anticipated advances in wireless technology
are modifying the business case for broadband. Networks that depend on a fiber-
optic cable backbone are capital-intensive and usually most profitable in high-density
urban areas. A number of rural communities have used their resources to install
fiber-optic broadband services in part because they were too small a market to
interest for-profit companies. The technology for Wi-Fi costs less and has a wider
geographic reach, broadening the size of potential markets for broadband. Most of
the discussion about the municipal provision of broadband applies generally to all
types of broadband services. However, it is the long-term market potential of Wi-Fi
and its successor technologies that are apparently spurring commercial wireless
service providers to lobby against municipal competition. In particular, the fact that
municipalities in urban areas are creating Wi-Fi networks and providing, among
other services, free access to Hot Spots (wireless links to the Internet) is viewed as
a threat to commercial companies and a form of unfair competition. Many
municipalities have installed free Wi-Fi zones or city-wide coverage. The cities
argue that generally available access to the Internet through wireless connections has
become an urban amenity, arguably a necessity, in sustaining and developing the
local economy. Municipal Wi-Fi also provides the opportunity to improve social
services and Internet access in disadvantaged communities that often are not served
by fiber optic networks.
The fierce debate around public-sector provision of what some consider to be
a private-sector service is expected to continue. Increasingly, Congress can expect
pressure from advocates from both sides to clarify the language of Section 243 or to
take some other action that addresses the issue.
For Further Information
CRS Report RS20993, Wireless Technology and Spectrum Demand: Advanced
Wireless Services, by Linda K. Moore.

---

CRS-10
Public Safety Communications7
Since September 11, 2001, successive Congresses have passed legislation
regarding technology, funding, spectrum access and other areas critical to emergency
communications. These new laws have tended to address specific issues, dealing
separately, for example, with interoperability for first responders, improvements in
emergency alerts, and 911 call centers. When reviewing emergency communications
legislation, whether for oversight or new initiatives, Congress may review the pace
of technological convergence and its impact on policies for emergency
communications. What once were discrete areas of emergency response are
increasingly sharing common technologies. First responders and other emergency
workers not only have access to better tools, but also — by adopting new
technologies — find themselves confronted with the need to rethink their internal
organizational structure and the ways that they communicate with external groups.
Most emergency communications in use today have been built on core
technologies such as two-way radio for emergency responders, telephone line
switches for 911 calls, and broadcasting for emergency alerts. Operated
independently of each other, these three pillars of emergency response have
developed along separate technology tracks. Advances in information technology —
and particularly the ubiquity of the Internet — have laid the groundwork for
connecting the functions of communications for emergency responders, 911 call
centers, and public alerts. For example: digital broadcasting used for emergency
alerts can also be used to deliver information to emergency responders; the use of
Internet Protocols (IP) provides a standard for network inter-connectivity;
interoperable radio networks used by first responders can open a channel for real-
time participation by operators in 911 call centers; these same call centers can be
used to generate local alerts, over all types of communications media, to virtually any
enabled device. Developing communications technologies with common elements
provide synergies that benefit both provider and user.
Federal policy and congressional action tend to treat these three important areas
of emergency communications through different agencies and different committees.
Some observers cite cross-agency coordination at the federal level and cross-
jurisdiction cooperation at the congressional level as areas where rapprochement
could facilitate homeland security. Because the preponderance of incidents involving
emergency workers occurs at the local level, local, state and regional participation
and coordination are included in federal solutions. Encouraging the right balance of
cooperative policy and federal leadership — to support both daily operations and
national response in catastrophic situations — is one of the goals of Congress.
Among the implications for the 110th Congress, in addition to fundamental
policy issues such as standards development and funding, is the possible need to
explore the Department of Homeland Security’s response to enacted legislation.
7 Linda K. Moore, Analyst in Telecommunications and Technology Policy, Resources,
Science, and Industry.

---

CRS-11
For Further Information
CRS Report RL33747, Emergency Communications Legislation: Implications for the
110th Congress, by Linda K. Moore.
The “Savings Clause” and Monopoly Issues8
The 1996 Telecommunications Act contains an antitrust “savings clause” that
specifically states that neither the 1996 Act nor any amendment to it should “be
construed to modify, impair, or supercede the applicability of any of the antitrust
laws” (section 601(b)(b), codified at 47 U.S.C. § 152, note). In Verizon
Communications, Inc. v. Law Offices of Curtis V. Trinko (540 U.S. 398 (2004)), the
Supreme Court denied the antitrust claim advanced by a consumer of
telecommunications services against a local exchange carrier (Verizon) that had
previously been subject to regulatory discipline by both the Federal Communications
Commission and the New York Public Service Commission. According to the Court,
the fact that Verizon had been found to have breached its duty under the
Telecommunications Act of 1996 to adequately share its network with
telecommunications companies — including AT&T, which provided service to
Trinko (the consumer plaintiff) — wishing to provide competitive local exchange
services did not provide sufficient basis for finding a violation of the antitrust laws.
Despite the existence of the “antitrust-specific savings clause,” the Court said, “the
act does not create new claims that go beyond existing antitrust standards.”
Trinko was received unfavorably by both the (then) chairman and ranking
minority member of the House Judiciary Committee, and by numerous commentators
and members of the so-called “competitive telecom industry.” The ruling has also
led to questions about its impact on the antitrust law’s prohibition against
monopolization, creating particular apprehension about the fate of the “essential
facilities” (“bottleneck,”with reference to telecommunications) doctrine. That
doctrine, whose validity was seemingly questioned by the Trinko Court, has been
thought to require that the proprietor of a facility deemed essential to a competitor’s
ability to compete share that facility with the competitor, assuming that such sharing
is feasible and the competitor is not reasonably able to duplicate the facility.
On the other hand, the (then) chairman of the House Energy and Commerce
Committee, who at that time was Representative Tauzin, received the decision with
approval. In addition, there are those who believe that Trinko did no violence to the
saving clause: they reason, as the Court appeared to, that absent the 1996 Act’s
imposition on local exchange carriers of the obligation to deal favorably with
competitors, Verizon violated no existing obligation under the antitrust laws. In a
statement to the Senate Judiciary Committee, made just prior to the decision, R.
Hewitt Pate, (then) Assistant Attorney General, Antitrust Division, Department of
Justice, noted that “passage of the 1996 Act did not have the effect of increasing any
party’s obligations under the antitrust laws,” and that it is “important to preserve the
8 Janice E. Rubin, Legislative Attorney, American Law Division.

---

CRS-12
distinction between a violation of the Telecommunications Act and a violation of the
Sherman Act.”
If Congress chooses to address this issue there are at least four options available.
Congress could choose to allow the current law to remain unchanged with respect to
the savings clause; it could amend the savings clause to clarify that the phrase, “the
antitrust laws,” means the literal words of the statutory provisions but excludes any
judicial interpretation of them; it could amend the enforcement provisions of the act
so that even if there had already been regulatory action, certain provisions of the act
would remain enforceable by private individuals who are not competitors of LECs;
or, it could characterize a violation of any (or some) mandatory, competitive
obligation(s) of the act as prima facie evidence of violation of the antimonopoly
provision of the antitrust laws (15 U.S.C. § 2). The last three might have the effect
of providing the breadth of private action some members apparently thought they had
assured in the 1996 Act.
For Further Information
CRS Report RL33708, The Distinction Between Monopoly and Monopolization in
Antitrust Law, by Janice E. Rubin.
Spectrum Auctions9
The Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66) amended the
Communications Act of 1934 with a number of important provisions affecting the
availability of spectrum licenses. The Licensing Improvement section of the act laid
out the general requirements for the FCC to establish a competitive bidding
methodology and consider, in the process, objectives such as the development and
rapid deployment of new technologies. The law prohibited the FCC from making
spectrum allocations decisions based “solely or predominately on the expectation of
Federal revenues. . . .” The Emerging Telecommunications Technologies section
directed the FCC to assign licenses for frequencies newly released for commercial
use over a period of at least 10 years. As in the requirements for competitive bidding,
the FCC was instructed to ensure the availability of frequencies for new technologies
and services, and also the availability of frequencies to stimulate the development of
wireless technologies. The FCC was further required to address “the feasibility of
reallocating portions of the spectrum from current commercial and other non-federal
uses to provide for more efficient use of spectrum” and for “innovation and
marketplace developments that may affect the relative efficiencies of different
spectrum allocations.”
The Balanced Budget Act of 1997 (P.L. 105-33) also contained spectrum
management provisions. It expanded and broadened the FCC’s auction authority and
modified other aspects of spectrum management. The act also planned for the auction
9 Linda K. Moore, Analyst in Telecommunications and Technology Policy, Resources,
Science, and Industry Division.

---

CRS-13
of spectrum licenses in airwaves that would be vacated by broadcasters as they
moved from analog to digital broadcasting technology.

The Deficit Reduction Act of 2005 (P.L. 109-171) set a deadline of February 17,
2009 as the last day of analog broadcasting and required that licenses for the freed-
up spectrum be auctioned no later than January 28, 2008. About $10 billion of the
auction proceeds has been designated for specific purposes by the act.
The Federal Communications Commission (FCC) has announced the rules for
the auction of the airwaves now used for analog TV broadcasting. Because the
decisions the FCC makes in setting up an auction of spectrum licenses can shape the
bidding process and the eventual outcome of the auction, the FCC typically finds
itself under pressure to set requirements that favor specific interests or policy goals.
The preparations for the upcoming auction have been particularly fraught with
controversy. The propagation characteristics of the spectrum are such that it is
considered ideal for wireless broadband. For this and other reasons, control of this
spectrum is sought not only by the incumbent wireless companies wishing to expand
their capacity but also by companies eager to apply next-generation technologies for
new business models. The auction rules introduce two innovative business models
for spectrum management and assignment that represent departures from past policy.
One model requires a shared network to accommodate both public safety and
commercial users in a partnership. The other innovative model designates spectrum
licenses for a network that could be managed to accept any suitable wireless device.
The decisions the FCC has made for this auction — and by extension for spectrum
policy — have framed a new debate about access to the airwaves, the nature of
competition in the wireless industry, and wireless access to the Internet.
For Further Information
CRS Report RS22218, Spectrum and the Transition to Digital TV, by Linda K.
Moore.
Universal Service Fund Reform10
The universal service concept, as originally designed, called on the Federal
Communications Commission (FCC) to establish policies to ensure that
telecommunications services are available to all Americans, including those in rural,
insular, and high cost areas, at reasonable rates. The Telecommunications Act of
1996 (P.L. 104-104) not only codified this long standing commitment, but also
expanded the concept to include, among other principles, that universal service
support be made available to qualifying schools, libraries, and rural healthcare
providers, and other nontraditional providers known as eligible telecommunications
carriers (ETCs). Over the years the universal service concept fostered the
development of various FCC policies and programs, and an explicit Universal
Service Fund (USF) was established to provide the necessary funding. There is a
10 Angele A. Gilroy, Specialist in Telecommunications Policy, Resources, Science, and
Industry Division.

---

CRS-14
growing consensus, however, that the USF as presently designed, is no longer
sustainable and universal service policies are threatened absent significant USF
reform.
Section 254 of the 1934 Communications Act requires the FCC to ensure that
there be “specific, predictable and sufficient ... mechanisms to preserve and advance
universal service.” However, the growth of competition in the telecommunications
marketplace coupled with technological advances have had a negative impact on the
health and viability of the USF, as presently designed. While often leading to
positive benefits to consumers and providers, these changes have led to a growing
imbalance between the entities and revenue stream contributing to the fund and the
growth in the entities and programs eligible to receive funding. The current policy
debate has focused on four major concerns: the scope of the program; who should
contribute to and what methodology should be used to fund the program; eligibility
criteria for benefits; and concerns over possible program fraud, waste, and abuse.
One additional, but more narrowly focused issue, is the application of the
Antideficiency Act (ADA) to the USF program. ADA compliance requires that
agencies have cash on hand to cover all obligations, causing a conflict with the way
some USF commitments are currently treated.
While few question the commitment to the universal service concept, how this
concept should be defined, how these policies should be funded, who should receive
the funding, and how to ensure proper management and oversight of the fund remain
open to discussion. While the FCC has taken (and will continue to take) action to
sustain the USF, there is a growing consensus that legislation will be needed to fully
address the modifications needed to not only ensure the viability of the USF, but also
address the myriad issues surrounding USF reform. Members in both the House and
Senate have expressed a desire to address this issue and it is likely that USF reform
will play a key role in any telecommunications reform policy debate.
For Further Information
CRS Report RL33979, Universal Service Fund: Background and Options for
Reform, by Angele A. Gilroy.

---