Communications Act of 1934 (full-text).
|“||for the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United Stakes a rapid, efficient, nationwide and worldwide wire and radio communications service with adequate facilities at reasonable charges.||”|
The FCC was tasked with implementing and administering the economic regulation of the interstate activities of the telephone monopolies and the licensing of spectrum used for broadcast and other purposes. It explicitly left most regulation of intrastate telephone services to the states.
In the 1970s and 1980s, a combination of technological change, court decisions, and changes in U.S. policy permitted competitive entry into some telecommunications and broadcast markets. In 1996, Congress passed the Telecommunications Act of 1996 ("1996 Act"), which significantly amended the 1934 Act and opened up markets to competition by removing unnecessary regulatory barriers to entry.
Title I — FCC Administration and Powers
Title I of the 1934 Act stated that the Act "applies to all interstate and foreign communications by wire or radio," and the legislative history of the Act indicated that the Federal Communications Commission (FCC) has "regulatory power over all forms of electrical communication," even those not explicitly mentioned in the Act. Title I confers upon the Commission the authority to promulgate regulations "reasonably ancillary to the effective performance of the Commission’s various responsibilities" outlined elsewhere in the Act.
The 1934 Act originally called for a commission consisting of seven members, but that number was reduced to five in 1983. Commissioners are appointed by the President and approved by the Senate to serve five-year terms; the President designates one member to serve as chairman. No more than three commissioners may come from the political party of the President. Title I empowers the Commission to create divisions or bureaus responsible for specific work assigned and to structure itself as it chooses.
In 2002, the Commission decided that cable broadband services should be subject only to the Commission's ancillary authority under Title I rather than its more explicit authority under Title II. After the U.S. Supreme Court decided this was one permissible interpretation of the Act, the Commission applied Title I to broadband services provided over telephone wires (DSL) and power lines (Broadband over power lines), and to wireless broadband services. In April 2010, a decision by the U.S. Court of Appeals for the D.C. Circuit cast serious doubt on the Commission’s ability to protect broadband consumers under Title I.
Title II — Common Carrier Regulation
Title II of the Communications Act, imposes certain specific requirements on common carriers in their provision of telecommunications services. Telephone service is clearly a "telecommunications service" (it transmits voice, unchanged, to a person at the other end of the line) and for several years the Commission also considered the transmission component of DSL service to be a "telecommunications service" (it transmits data, unchanged, from one computer to another computer).
Title II helps ensure a competitive market for telecommunications services, and it gives basic protections to consumers who use them. Generally, Title II requires common carriers to provide service "upon reasonable request therefor," and at a "just and reasonable" rate. Under Title II, common carriers are also required to provide services without "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services."
In addition, the Act requires certain carriers to provide potential competitors with access to their network. Entities regulated under Title II may also be subject to additional requirements governing universal service support, the provision of disability access, public safety, consumer protection, and law enforcement access.
In 1996, Congress added a very important provision to Title II that requires the Commission to refrain ("forbear") from applying any provision that is not necessary to protect consumers or the public interest. This allows the Commission to tailor its application of the statute to evolving technologies and changing markets.
Title III — Broadcast Station Requirements
Much existing broadcast regulation was established prior to 1934 by the Federal Radio Commission and most provisions of the Radio Act of 1927 were subsumed into Title III of the 1934 Act. Sections 303-307 define many of the powers given to the FCC with respect to broadcasting; other sections define limitations placed upon it. For example, section 326 of Title III prevents the FCC from exercising censorship over broadcast stations. Also, parts of the U.S. Code are linked to the 1934 Act. For example, 18 U.S.C. §1464 makes obscene or indecent language over a broadcast station illegal.
Title IV — Procedural and Administrative Provisions
Title IV contains provisions relating to hearings, joint boards, judicial review of FCC's orders, petitions, and inquiries.
Title V — Penal Provisions and Forfeitures
Title VI — Cable Communications
Title VII — Miscellaneous Provisions and Powers
Title VII contains provisions relating to the war powers of the President, closed captioning of public service announcements, and telecommunications development fund.
Application to cybersecurity
Some observers have proposed that the Act be revised to give the FCC more of a role in cybersecurity, especially given the growing merging of information and communications technology (ICT) and their increasing importance in the U.S. economy. In fact, a number of other countries have more unified governance of ICT than the United States.
Some controversy exists about whether Section 706 of the Act, which provides the President with authority in a national emergency to control "any or all stations or devices capable of emitting electromagnetic radiations," and in case of war or threat of war, to close "any facility or station for wire communication" permits the President to shut down Internet communications during a war or national emergency, a power that has sometimes been referred to as the "Internet kill switch." However, there does not appear to be a consensus about whether, in fact, additional authority is needed, or, if it is not, whether additional legislation is needed to clarify and delimit it.
Section 718 requires mobile phone manufacturers and mobile service providers that include or arrange for the inclusion of an Internet browser on mobile phones to ensure that the functions of the included browser are accessible to and usable by individuals who are blind or have a visual impairment, unless doing so is not achievable.
- 47 U.S.C. §151 et seq. The Act has been amended numerous times, most significantly in recent years by the Telecommunications Act of 1996. The Act created the Federal Communications Commission ("FCC" or "Commission") as an independent federal agency.
- 47 U.S.C. §152(a).
- S. Rep. No. 73-781, at 1 (1934). See also United States v. Southwestern Cable Co., 392 U.S. 157 (1968)(full-text).
- Id. at 178.
- In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798 (2002) (Cable Modem Declaratory Ruling), aff'd Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)(full-text).
- Comcast v. FCC.
- 47 U.S.C. §201.
- Id. §202.
- Id. §251(a) (establishing general duties of common carriers) and §§251(c)(2) and (3) (relating to duties of incumbent local exchange carriers). See also id. §201(a)(requiring nondiscriminatory access).
- See, e.g., Elgin M. Brunner & Manuel Suter, International CIIP Handbook 2008/2009 (Center for Security Studies, ETH Zurich, 2008) (full-text).
- Section 706 of the Act, 47 U.S.C. §606.
- Terrorist Use of the Internet: Information Operations in Cyberspace.
- Application to Cyberspace section: Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, at 14.