by Adam Thierer & Berin Szoka

We’re hoping that the Government Accountability Office (GAO) has made some sort of mistake, because it’s hard to believe its latest findings about the paperwork burden generated by Federal Communications Commission (FCC) regulatory activity. In late January, the GAO released a report on “Information Collection and Management at the Federal Communications Commission” (GAO-10-249), which examined information collection, management, and reporting practices at the FCC. The GAO noted that the FCC gathers information through 413 collection instruments, which include things like: (1) required company filings, such as the ownership of television stations; (2) applications for FCC licenses; (3) consumer complaints; (4) company financial and accounting performance; and (5) a variety of other issues, such as an annual survey of cable operators.  (Note: This does not include filings and responses done pursuant to other FCC NOIs or NPRMs.)

Regardless, the FCC told the GAO that it receives nearly 385 million responses with an estimated 57 million burden hours associated with the 413 collection instruments. A “burden hour” is defined under the Paperwork Reduction Act as “the time, effort, or financial resources expended by persons to generate, maintain, or provide information to a federal agency.” And the FCC is generating 57 million of ‘em! Even though we are frequently critical of the agency, these numbers are still hard to fathom. Perhaps the GAO has made some sort of mistake here. But here’s what really concerns us if they haven’t made a mistake.

Assuming the GAO got these numbers right, just think of the deadweight economic loss associated with all this paperwork, and think of how it will grow in months and years to come! Can you imagine how much the numbers have likely grown so far this year, with the agency generating so many new public notices, notices of inquiry, requests for information, and more?  And just think what the paperwork burden will look like once the National Broadband Plan and Net neutrality regulations kick in!  Oh my… The agency has already promised lots more notices will flow out of the National Broadband Plan to implement various portions of it.

In terms of the deadweight loss, go back to the numbers Adam cited in his essay last week asking, “Will the FCC’s Nat’l Broadband Plan Be “Full Employment for Lawyers”? As noted there, lawyers were about the only group that did fairly well thanks the FCC’s over-zealous regulatory ways in the post-Telecom Act period. Greg Sidak of Georgetown University Law School found that the number of telecom lawyers–as measured by membership in the Federal Communications Bar Association–grew by a stunning 73% in the late 1990s. That was largely driven by a 37% hike in FCC spending and a tripling of the number of pages of regulations in the FCC Record in the post-Telecom Act period. Sidak argued, “If one assumes (very conservatively) that the average income of an American telecommunications lawyer is $100,000, then the current membership of the FCBA represents an annual expenditure on legal services of at least $340 million.” And we all know that those lawyers were making a heck of lot more than just $100K (and billed even more), so Sidak’s estimates were ultra-conservative: The deadweight loss of all this legal activity was much greater.

Indeed, a very conservative estimate of hourly rates for Washington communications lawyers would be $200/hour, but even at that rate, 57 million burden hours would equate to a total cost of $11.4 billion. In fact, when major Washington law firms use “blended rates” to bill out the time of senior partners, junior associates, and paralegals working in teams on things like regulatory filings, the figure is more like $350-400 (if not more)—which would equate to a deadweight cost of $20-23 billion every year.  To put that staggering number in perspective, leaks about the National Broadband Plan indicate that the FCC might be planning on spending about that much to subsidize broadband deployment over a decade.

Or, to use another comparison, NASA’s 2010 budget is a mere $18.69 billion.  That’s in the same ballpark as what, according to the GAO’s man-hour estimates, the FCC’s reporting requirements cost U.S. industry every year.  As Wernher von Braun famously said about the Apollo program, which he led: “We can lick gravity, but sometimes the paperwork is overwhelming.”

So, “if we can put a man on the moon,” as they say, why can’t we do something about this paperwork burden so America’s communications, media, and high-tech providers can focus on actually providing better, faster, and cheaper service to consumers?

Today I am attending, and speaking at, a terrific event in downtown DC sponsored by the Catholic University Law School on“Implementing the National Broadband Plan: Perspectives from Government, Industry, and Consumers.” It’s being held at the offices of the law firm of Wiley Rein LLP.  Edward Lazarus, Chief of Staff to FCC Chairman Julius Genachowski kicked off the event with a nice keynote address talking about the broad goals of the FCC’s coming National Broadband Plan. Lazarus broke the ice by joking with the crowd — which is heavily made up of communications industry lawyers — that “The FCC is doing everything it can to provide full employment for telecom lawyers.  Whatever else we are failing at, we are succeeding at that.” Again, it was a joke, so I don’t want to make too much out of it, but…  No, strike that, I do want to talk about that for a minute! Because this is actually a very important question: Exactly how much bureaucracy and deadweight loss to the economy (in the form of more lawyering and lobbying) is going to accompany the National Broadband Plan?

Two years ago, I posted an essay on “Lawyers, Lawsuits and Net Neutrality Regulation,” in which I attempted to highlight the uncomfortable fact that Net neutrality regulation will likely lead to a bureaucratic nightmare at the FCC and a lawyer’s bonanza once the lawsuits start flying in court. Of course, now we have Net neutrality regulations and a National Broadband Plan pending at the FCC, so the potential for bloated bureaucracy will only grow larger. Do you think I am exaggerating? Well, here are some facts to consider from our recent experience in the field of “telecom reform.”  In the years following passage of the Telecom Act, entire forests fell because of the thousands of pages of regulatory and judicial interpretations that were handed down trying to figure out what that word meant. In fact, let’s take a quick tally of the paperwork burden the FCC managed to churn out in just three major “competition” rules it issued in an attempt to implement the Telecom Act and define the “cost” of unbundled network elements (“UNEs”):

• Local Competition Order (1996): 737 pages, 3,283 footnotes
• UNE Remand Order (1999): 262 pages, 1,040 footnotes
• UNE Triennial Review (2003): 576 pages; 2,447 footnotes

That’s 1,575 pages and 6,770 footnotes worth of regulation in just three orders! This obviously does not count the dozens of other rules and clarifications the FCC issued to implement other parts of the Telecom Act. Nor does it include the hundreds of additional rules issued by state public utility commissions (PUCs), who actually received expanded authority under some of these FCC regulatory orders.

Again, this was all implemented following the passage of a bill (The Telecom Act) that was supposed to be deregulatory in character!  But wait, it gets worse. This doesn’t even begin to cover the tens of thousands of pages of legal filings, economic studies, consultant reports and other filings submitted to the FCC and state agencies by groups and individuals looking to have a say in the matter.

Lawyers, in particular, did quite well thanks to the FCC’s endless stream of litigation-prone rulemakings during the 1996-2003 period. Greg Sidak of Georgetown University Law School found that the number of telecom lawyers–as measured by membership in the Federal Communications Bar Association–grew by a stunning 73 percent in the late 1990s. That was largely driven by a 37 percent hike in FCC spending and a tripling of the number of pages of regulations in the FCC Record in the post-Telecom Act period. Sidak argues, “If one assumes (very conservatively) that the average income of an American telecommunications lawyer is $100,000, then the current membership of the FCBA represents an annual expenditure on legal services of at least $340 million.” And we all know that those lawyers were making a hell of lot more than just $100K, so Sidak’s estimates are ultra-conservative and the deadweight loss of all this legal activity was much greater.

Even the lawyers admitted what a boon all this regulation was to their business. In the wake of one controversial FCC rulemaking in 2003, telecom lawyer Dana Frix of the firm Chadbourne & Parke told The New York Times that “Every word will be challenged… My children will go to college on this stuff. This is a lawyer’s dream.” That pretty much says it all, now doesn’t it?

Look, I know that many supporters of a National Broadband Plan and Net neutrality regulation have good intentions. They really do think that The Plan and these rules will make the world a better place. But they need to acknowledge that regulation sometimes has unintended consequenses, especially when bureaucrats are asked to embark on grand “National Plans,” or to interpret amorphous terms like “neutrality.”  Once the programs and laws get on the books, volumes of regulations are promulgated interpreting and implementing them. That is followed by still more regulations interpreting, enforcing, and expanding the earlier regs. And then the lawsuits begin. Followed by still more regs and then more laws trying to straighten it all out after the courts say its all hopelessly arbitrary. Pretty soon we forget what we were fighting over. It’s all just about the paperwork and the lawsuits. And it becomes a grand sport for the armies of well-heeled laywers, lobbyists, consultants and economists who operate inside the parasitic economy we call “the Beltway.”

So, as much I wish Mr. Lazarus really was just joking about the FCC “doing everything it can to provide full employment for telecom lawyers,” the reality is that that is exactly what will happen following implementation of the National Broadband Plan and Net neutrality regulations. And that’s why the room full of telecom lawyers sitting here with me today were really laughing when Mr. Lazarus delivered that punch line… Laughing all the way to the bank, that is.

Fellow TLFer Julian Sanchez has written (twice) at Cato@Liberty on the big school-using-laptops-to-spy-on-kids case.

Indulging my contrarian habit, I’m taking a little bit of a different view, though not necessarily an inconsistent one. While it seems error to me that the school district issued laptops with a potentially invasive security system, failing to fully inform parents, I think a lot more facts have to come out before we reach legal conclusions.

I started to feel some contrary comin’ on when I read the lengthy commentary of a parent at the school, posted on a privacy colleague’s Facebook wall. Among other things, she said:

The minor in question is a truly bad kid. [cites supporting facts] He had broken two laptop computers and had been issued a loaner computer with the explicit instructions not to take it off school property. It disappeared from the school and when questioned he told the school it had been stolen from him. There is quite a bit of theft and laptops had been a target. The kids seemed to know about the security system in place, I didn’t know about it which I think was wrong — the school has apologized for this. The school activated the security system realized the computer was in use and the webcam took a still shot. The minor in question was sitting in front of the webcam, the rumor is with drugs. The photo was sent to the police which apparently was standard procedure for stolen property and not related to anything else.

Maybe the “drugs” were Mike & Ike’s candies. The plaintiff’s lawyer says so. (Consider the veracity of a kid explaining things to his parents and their counsel, though, and of a trial lawyer seeking to lead a class action.)

Sugar pills or not, if the laptop is AWOL from school—presumptively stolen—I don’t see that it would be unreasonable to use the security system to discover its location, and the camera to capture images of who is using it. If there are statutes that would prevent that, I think a court would find a way to avoid applying them, be it on the theory that the putative thief assumed the risk of being surveilled, unclean hands, or some other basis.

The reporting and commentary has been a little overwrought. Better facts will determine what law should apply. Parents at the school have started a Facebook group to discuss this and share the rest of the story given that the school district has, well, lawyered up.

I tipped a reporter at an outlet I respect about this parent’s version of events. The reporter was alternately dismissive of sources that weren’t “official” and highly defensive when I suggested that her writing and reporting appeared to be preserving controversy rather than getting to the bottom of things. So much for relying on media—even new media—for getting information out.

Maybe spun-up outrage will cause better policies in this area than would otherwise result. Maybe we’ll learn that the security system was used for routine, inappropriate spying on kids. But as a legal case, there’s a lot more to be learned before we should draw conclusions.

Great piece in Wired by Fred Vogelstein asking “Why Is Obama’s Top Antitrust Cop Gunning for Google?” It paints a pretty good picture of the coming antitrust ordeal that Google is likely to be subjected to by the Obama Administration. And, as usual, I couldn’t agree more with the skepticism that Eric Goldman of Santa Clara University Law School articulates when he notes: “The problem for antitrust in high tech is that the environment changes so rapidly. Someone who looks strong today won’t necessarily be strong tomorrow.”  More importantly, as Vogelstein’s article notes, we’ve been down this path before with less than stellar results when you look at the IBM investigation in the 70s and the Microsoft case from the 90s (a fiasco that is still going on today):

After the government initiated its case against IBM, the company spent two decades scrupulously avoiding even the appearance of impropriety. By the time the suit was dropped in the early 1980s, company lawyers were weighing in on practically every meeting and scrutinizing every innovation, guarding against anything that could be seen as anticompetitive behavior. A decade later, innovation at Big Blue had all but ceased, and it had no choice but to shrink its mainframe business. (It has since reinvented itself as a services company.) Microsoft took the opposite approach. Gates and company were defiant, to the point of stonewalling regulators and refusing to take the charges seriously. “Once we accept even self-imposed regulation, the culture of the company will change in bad ways,” one former Microsoft executive told Wired at the time. “It would crush our competitive spirit.” Gates put it even more directly: “The minute we start worrying too much about antitrust, we become IBM.” Microsoft’s hostility to the very idea of regulation resulted in several avoidable missteps—including remarkably antagonistic deposition testimony from Gates—that ultimately helped the DOJ rally support for its ongoing antitrust suit against the company. Although Microsoft ultimately settled, the public beating appears to have taken a toll on the company, which has been unable to maintain its reputation for innovation and industry leadership.

Read the whole article for all the gory details.  This is going to be the biggest antitrust case of all-time once it is finally launched and I feel confident predicting that it will make many lawyers and consultants very, very rich while doing absolutely nothing to help consumer welfare.  But perhaps those DOJ lawyers can at least get Google to lower the prices for all those services they offer. Oh, wait, they’re all free.  But don’t worry, I’m sure Beltway bureaucrats will do a great job of running something as complex as search algorithms and online advertising markets.  Right.

When it comes to theories about how to best raise kids, I’m a big believer in what might be referred to “a resiliency approach” to child-rearing.  That is, instead of endlessly coddling our children and hovering over them like “helicopter parents,” as so many parents do today, I believe it makes more sense to instill some core values and common sense principles and then give them some breathing room to live life and learn lessons from it.  Yes, that includes making mistakes.  And, oh yes, your little darlings might actually gets some bump and bruises along the way — or at least have their egos bruised in the process.  But this is how kids learn lessons and become responsible adults and citizens.  Wrapping them in bubble wrap and filling their heads without nothing but fear about the outside would will ultimately lead to the opposite: sheltered, immature, irresponsible, and unprepared young adults — many of whom expect someone else (the government, their college, their employer, or still their parents!) to be there to take care of them well into their 20’s or even 30’s.  Again, you gotta let kids live a little and learn from their experiences.

This explains why I find Lenore Skenazy’s new book, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry , to be such a breath of fresh air.  [Here’s her blog of the same name.] She argues that “if we try to prevent every possible danger of difficult in our child’s everyday life, that child never gets a chance to grow up.” (p. 5) As she told Salon recently:

You want kids to feel like the world isn’t so dangerous. You want to teach them how to cross the street safely. You want to teach them that you never go off with a stranger. You teach them what to do in an emergency, and then you assume that generally emergencies don’t happen, but they’re prepared if they do. Then, you let them go out. The fun of childhood is not holding your mom’s hand. The fun of childhood is when you don’t have to hold your mom’s hand, when you’ve done something that you can feel proud of. To take all those possibilities away from our kids seems like saying: “I’m giving you the greatest gift of all, I’m giving you safety. Oh, and by the way I’m taking away your childhood and any sense of self-confidence or pride. I hope you don’t mind.”

Exactly right, in my opinion. Again, let kids live and learn from it.  Teach lessons but then encourage ‘learning by doing’ and let them understand these things for themselves.  That is resiliency theory in a nutshell.

When writing about Gever Tulley’s brilliant “Tinkering School” in this post last year, I noted how I have already started teaching my kids how to use various tools even though they are both under the age of 8.  One of my safety-obsessed yuppie friends stopped by one day to get something and saw my kids playing with hammers, nails, and saws and he thought I was nuts.  But it is he who is nuts for shielding his kids to the joys of learning to build something with their own hands (and for denying them the skills to actually do some honest-to-God manual labor when they get older)!  Have my kids hammered their thumbs on occasion? Yep.  Have they cut or poked their fingers? Check.  But you know what? They bounced back and learned how to be more careful. It’s not like I put a nail gun or power saw in their hands and let them go at it!  But there will be a day that they will be competent enough to know how to use such tools properly, especially because I drill some basic lessons into them each time we pull out those tools. Without me even saying so anymore, they already put on their safety goggles and take other common sense precautions before they use such tools.

Why is it that things have gotten so out of whack, with parents instilling so much fear in their kids about the world?  Skenazy rightly notes that the fundamental problem is that “a lot of parents today are really bad at assessing risk.” (p. 5)  Parents today suffer from “extravagant worry,” she notes. “Extravagant in that it inflates remote possibilities into looming threats that we think we have to watch out for.” (p. 93) “Worrying,” she argues, “has become our national pastime.” (p. 94) “What has changed over the past generation or so is than now people worry… about every activity, even ones that used to be considered simple and pleasant,” she says. (p. 42). Camping, ball games, bike rides, walking to school, etc., are increasingly going out of style. “Millions of moms and almost (but not quite as many) dads now see the world as so fraught with danger that they can’t possibly let their children explore it.” (p. 5)  “And the result is a lot of people so busy preparing for the hideous and unpredictable future that they think nothing of trampling the safe and happy present.” (p. 44)

This has spawned the rise of what Skenazy refers to as the “Just In Case” and “Total Control” mentalities that exist among many parents throughout society today. Many modern parents seem to believe that with just enough safety locks, knee pads, toilet locks, stair gates, and so on, they can keep their kids perfectly safe from all the harms of the world —  both real or (more likely) imagined. Alas, Skenazy argues, “Control is a figment of our imagination. Seeking it only make us more anxious.” (p. 92)  Worse yet, after wrapping those kids in all that bubble wrap, a lot of these same parents force nonsense on them like Baby Einstein videos and Mozart tapes at very young ages hoping that will make those kids geniuses in later life.  It’s more likely they’ll grow up to be Ted Kaczynski.

But if Skenazy is right in arguing that most parents now behave as if “normal childhood has just become too risky to permit,” think of the long-term consequences that has on kids.  Such a relentlessly fear-based mentality breeds distrust, even loathing, of the outside world and all others in it.  Moreover, as I mentioned at the outset, excessive coddling makes it impossible to learn life lessons and build resiliency and responsibility into youngster such that they can go on to become productive citizens.

Skenazy also has some common sense thoughts on the over-hyped issue of Internet sexual predation. As she told Salon:

The world online turns out to be not very different from the world offline. There are some really seedy neighborhoods where you wouldn’t want your kids hanging out, especially if they were wearing high-heeled shoes and fishnets stockings at night. If your kids don’t go there, then your kids are not going to be stalked by predators just looking up prom pictures on Facebook.

Again, exactly right.  And yet, as I have pointed out here before, an irrational “techno-panic” has taken place in recent years over this issue even though the research just doesn’t back up the claim that predators are lurking on every cyber-corner.  Moreover, there’s not a stalker or a child abductor hanging out on every real world corner either. As she notes in the book, “the number of children abducted and killed by strangers [has held] pretty steady over the years — about 1 in 1.5 million. Put another way, the chances of any one American child being kidnapped and killed by a stranger are almost infinitesimally small: .00007 percent.” (p. 16)  And yet, parents today are practically paralyzed by the fear that if they let their kids out of their sight for even a millisecond, they will be snatched.

Skenazy blames sensationalized news coverage for much of this, and I tend to agree.  Even though there are many other tragic ways young kids die each year — and do so in far greater numbers — the media tends to focus on the freakishly rare missing child or abduction scenario until they have whipped up a full-blown public panic.  Incidentally, when those exceedingly rare abductions do take place, it is almost never at the hands of a complete stranger. Generally speaking, abductions by strangers “represent an extremely small portion of all missing children [cases].”  That conclusion was a central finding of the 2002 National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), a study conducted by the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.  Instead, it’s known acquaintances and family members that represent the overwhelming portion of offenders. As psychologist Anna C. Salter, author of Predators: Pedophiles, Rapists, and Other Sex Offenders, points out, “[Sex offenders] are part of our communities, part of our network of friends, worse yet, sometimes part of our families.” Same goes for the abductions. In the vast majority of cases, it is relatives or parties close to the family (say, a disgruntled nanny) who snatches the child.  In other words, instead of being obsessed about letting your kids ride their bike around the neighborhood or play in the center of the mall, parents should be far more concerned with those they marry, date, or employ!!

In any event, read Lenore Skenazy’s Free-Range Kids.  It is beautifully written and immensely enjoyable. She is an insanely gifted writer that will keep you thinking and laughing at the same time.  That’s a rare gift, and her book is a much-needed gift to over-worried parents everywhere.  Read this book, stop worrying, and then tell you kid to go outside and play!

P.S. Quick closing rant… Can I just tell you how much I hate the scumbag trial lawyers who have made it impossible for my kids to experience the joys of diving boards at the local pool.  Steve Moore of The Wall Street Journal, who takes his kids to the same McLean pool my kids go to, explains how some greedy leeches lawyers have made it impossible for pools like ours to keep high-dive board around like we had growing up.  Maybe we should just ban pools altogether while we’re at it.  Fence-off all the lakes and streams, too.  After all, kids could drown!!

Incidentally, this reminds me of the most sensible thing every written about online child safety. In 2002, a blue-ribbon panel of experts was convened by the National Research Council of the National Academy of Sciences to study how best to protect children in our new, interactive, “always-on” multimedia world.  Under the leadership of former U.S. Attorney General Richard Thornburgh, the group produced a massive report that outlined a sweeping array of methods and technological controls for dealing with potentially objectionable media content or online dangers. Ultimately, however, the experts used a compelling metaphor to explain why education and sensible mentoring was the most important tool on which parents and policymakers should rely:

Technology-in the form of fences around pools, pool alarms, and locks-can help protect children from drowning in swimming pools. However, teaching a child to swim-and when to avoid pools-is a far safer approach than relying on locks, fences, and alarms to prevent him or her from drowning. Does this mean that parents should not buy fences, alarms, or locks? Of course not-because they do provide some benefit. But parents cannot rely exclusively on those devices to keep their children safe from drowning, and most parents recognize that a child who knows how to swim is less likely to be harmed than one who does not. Furthermore, teaching a child to swim and to exercise good judgment about bodies of water to avoid has applicability and relevance far beyond swimming pools-as any parent who takes a child to the beach can testify. (p. 187)

“A child who knows how to swim is less likely to be harmed than one who does not.”  We could apply that lesson to just about everything in this world.  Teach your children well, and then let them live and learn.  And swim!