Yesterday it was my privilege to speak at a Free State Foundation (FSF) event on “Ideas for Communications Law and Policy Reform in 2013.” It was moderated by my friend and former colleague Randy May, who is president of FSF, and the event featured opening remarks from the always-excellent FCC Commissioner Robert McDowell.
During the panel discussing that followed, I offered my thoughts about the problem America continues to face in cleaning up communications and media law and proposed a few ideas to get reform done right once and for all. I don’t have time to formally write-up my remarks, but I thought I would just post the speech notes that I used yesterday and include links to the relevant supporting materials. (I’ve been using a canned version of this same speech at countless events over the past 15 years. Hopefully lawmakers will take up some of these reforms some time soon so I’m not using this same set of remarks in 2027!)
I) The fundamental problem we face in the world of communications and media policy today is easy and diagnose and, at least in theory, easy to remedy.
The Problem= asymmetrical regulation / “unlevel playing field”
- Policymakers are imposing different regulatory policies on different layers of the modern information ecosystem. (This is sometimes referred to as the “regulatory silos” problem.)
- Regulatory silos and unlevel playing fields create 3 additional problems. They:
- are unfair to those players who suffer under more onerous rules;
- threaten to roll the old onerous rules on newer and less regulated speech and communications platforms and technologies; and,
- create uncertainty and threatens investment and innovations.
The Solution (again, simple in theory but not in political reality) = level the playing field by deregulating down to achieve parity instead of regulating up
II) Let’s get more concrete about how to accomplish that sort of liberalization and level the playing field. Three simple reform ideas can help:
- “MFN clause for communications and media policy”: To the extent Congress continues to place ground rules on the information sector at all, it should consider borrowing a page from trade law by adopting the equivalent of a “Most Favored Nation” (MFN) clause for communications and media policy. In a nutshell, this policy would state that: “Any operator seeking to offer a new service or entering a new line of business, should be regulated no more stringently than its least regulated competitor.” Such a MFN for communications would ensure that regulatory parity exists within this arena as the lines between existing technologies and industry sectors continue to blur. Placing everyone on the same deregulated level playing field should be at the heart of telecommunications policy to ensure non-discriminatory regulatory treatment of competing providers and technologies at all levels of government. In other words, to level the proverbial playing field properly, we should “deregulate down” instead of regulating up to place everyone on equal footing.
- “Moore’s Law” for information technology laws and regulations: With information markets evolving at the speed of Moore’s Law, public policy must as well. Toward that end, every new technology proposal should include a provision sunsetting the law or regulation 18 months to 2 years after enactment. And this principle should apply retroactively so that old rules are sunset on a rapid timetable. If Congress deems them vital, they can always be reauthorized. [See my Forbes column on this proposal.]
- Comprehensive FCC reform, downsizing & defunding: You can’t truly deregulate communications and media markets if the primary regulator (the FCC in this case) remains large and is constantly growing its budget and responsibilities. Regulators exist to regulate! Only by downsizing and defunding them can we truly deregulate these markets. (Alfred Kahn and the Democrats taught us that in the late 1970s when the comprehensively deregulated airline and transportation markets and then moved to abolish the agencies that oversaw those sectors as well. They understood that the very existence of those agencies was a major contributing factor to economic inefficiency and crony capitalism.)
III) If wasn’t that long ago that this sort of an approach was considered the model for how to move forward
Following the lead of the Democrats who deregulated airlines and transportation sectors in the late 1970s, a number of scholars in the 1990s and 2000s devised comprehensive reform proposals for communications and media markets. (Two old PFF projects built on this):
- “The Telecom Revolution”: May 1995 proposal from @ a dozen different free-market think tank analysts to replace the FCC with a much smaller agency.
- “Digital Age Communications Act” project (“DACA”): a 2005-06 set of proposals from over 50 non partisan academics to make the FCC behave more like the FTC. [See this paper by Ray Gifford for a concise summary of the project and all the proposals).
Generally speaking, both projects focused on same 5 reform objectives:
- Replacing the amorphous “public interest” standard with a consumer welfare standard, which is more well-established in field of antitrust law
- Eliminate regulatory silos and level the playing field through deregulation
- Comprehensively reform spectrum not just through more auctioning but through clear property rights
- Reform universal service by either voucherizing it or devolving it to the States and let them run their own telecom welfare programs
- Significantly reforming & downsizing the scope of the FCC’s power of the modern information economy
- If we can get those 5 things done, we will have accomplished true deregulation of America's information marketplace. What we don't want is another fiasco like the Telecommunications Act of 1996, which represented an effort at managed competition. That law intentionally avoided providing clear deregulatory guidance and instead delegated broad and remarkably ambiguous authority to the FCC. This left the most important deregulatory decisions to the FCC and, not surprisingly, the agency did a very poor job of following through with a serious liberalization agenda.
- Again, regulators generally don't deregulate themselves! It is against their self-interest. Congress must impose restraint on the agency and limit (or, better yet, end) its powers.
IV) Some will say communications & media markets are too important to deregulate. But the exact opposite is true.
- America's Founders thought media was important enough that they made sure that the First Amendment clearly stated that "Congress shall make no law" as it pertains to freedom of speech and the press. They got it exactly right.
- We need to return to that Constitutional prime directive for information markets and start removing the layers of unjust and unnecessary regulation that have encumbered these markets for the past 100 years. America's communications and media policy should once again be the First Amendment, not the Communications Act of 1934 or the Telecom Act of 1996.
- What we need, to borrow the title of Richard Epstein's book of the same title, is "simple rules for a complex world." Those simple rules include: the law of contract, torts and common law, anti-fraud statutes, etc.
- Such simple rules can govern our complex information ecosystem the same way they govern every other sector of our capitalist economy. We don't need a sector-specific regulator or body of regulation for communications, media, and the Internet.
[Video clip of my remarks from the FSF panel follows.]