When the history books are finally written, I think it’s clear that outgoing FCC Chairman Kevin Martin will likely go down as one of — if not the — most aggressively pro-regulatory Republican chairman in the agency’s history. Despite his occasional claims of believing in free markets and his support for a couple of legitimately deregulatory decisions, his tenure at the FCC has generally been characterized by a growth of government power, spending, and bureaucracy. But don’t take my word for it; read the report he issued last week called “Moving Forward,” which to some of us looks more like moving backwards (or at least stuck in the same ol’ mud).
Martin, however, touts his regulatory actions and expansion of FCC power as uniformly pro-consumer. Martin is just another in the long line of statists who claims that consumer welfare can only be enhanced by adding layers of government mandates and regulatory red tape. History teaches us a different lesson: That regulation and bureaucracy typically stifle innovation and competition and hurt consumer welfare in the process. Moreover, there are some constitutional considerations and limitations that should trump — or at least limit — the powers of unelected bureaucrats to run roughshod over our rights. But hey, who cares about those meddlesome little things like the First, Fifth, Tenth, or Fourteenth Amendments?! Certainly not Kevin Martin.
What’s equally troubling about Martin’s tenure at the agency is the track record of mismanagement and the bad blood that seemingly surrounds everything and everyone he comes in contact with. The picture painted in the House Energy & Commerce Committee’s 110-page report, “Deception and Distrust: The FCC Under Chairman Kevin J.Martin,” is not a pretty one — although the report failed to mention that waste, mismanagement, and other regulatory shenanigans have been going on at this agency under the days of Democratic rule, too.
Martin’s response to the House report was all too predictable: The evil corporate interests are out to get me! “[M]ost of the criticisms contained in the Majority Staff Report,” Martin says in a letter released a few days ago, “reflect the vehement opposition of the cable and wireless industries to my policies to serve and protect consumers.”
Whatever.
I’m just glad this nightmare is over. Hopefully Martin’s tenure will serve as a cautionary tale for a future Republican administration: If you actually believe in free minds and free markets, try vetting the guy you install at the FCC to make sure he’s a true believer as well.
Scott Gottlieb reports in the WSJ online on provisions in the fiscal stimulus package now before the House that would restrict the drugs doctors could prescribe based on cost effectiveness. This entails top-down assessments not only of how good the drugs are, but what an additional year of a person’s life is worth. Rather ironic, in an environment where some argue in favor of a government controlled health care system because health care is a “right.” His article also points the way to a better solution–let private companies that study the effectiveness of treatments publicize the results.
I have not looked at the details of this plan, but it seems to me that especially if it does not leave patients the option of paying out of pocket for alternative treatments, it is ripe for consitutional challenges, under
Griswold that protects rights to use contraceptives, for example. It will be interesting if restrictions on speech, prohibiting doctors from telling patients that alternative treatments are available that they are not permitted to prescribe, eventually accompany the the attempt to restrict prescriptions.
FWIW… Just upgraded — at no cost — to Verizon’s 20/5 FIOS plan. Been hitting almost 25 megs pretty consistently today. I was on Verizon’s 10/2 plan beforehand and the 5/2 plan before that. Didn’t notice as much of a difference when I moved from 5 to 10, but jump to 20 is definitely noticeable on big file downloads.
Cox Cable has also been offering nice speed boosts in my neighborhood (McLean, VA) recently, so I suspect that’s why I was offered the free upgrade yesterday when I called Verizon about adding some new HD channels to my FIOS TV package.
Just before the New Year, Mike Masnick reported:
It’s been well over five years since we first heard about a plan in Oregon to attach GPS devices to cars and tax drivers based on how much they drove and the idea hasn’t become any better in the intervening years… but apparently it’s still being pushed. Oregon’s governor is trying to move forward with the plan. One of the reasons behind the bill has nothing to do with a more efficient way to tax drivers, but because the state is gaining less revenue from its gas tax since there are more fuel-efficient cars on the roads these days. Of course, rather than reward drivers for driving more fuel efficient cars, this sort of tax punishes them, and actually encourages the use of less fuel efficient vehicles. And, of course, that doesn’t even begin to get into the potential (and likely) privacy problems brought about by any system whereby the government has full access to a GPS system on your car.
This is a great example of the problems that often arise when trying to bring into the digital age areas of the economy monopolized or dominated by government. There’s a clear (if imperfect) analogy here to Obama’s ambitious goal of digitizing health records: both are great ideas that raise special privacy concerns because of the heavy involvement of government. These privacy concerns are certainly not unwarranted: I wouldn’t want the government to have access to my car’s location or my medical history at any given moment or a complete record of where I’ve driven or what doctors I’ve seen. But just as relying on paper health records is clearly stupid (and dangerous), it would make a hell of a lot more sense for drivers to pay for road use depending on “where, when and how far they drove”—as in a small pilot project in the UK.
Today, state and Federal taxes on every gallon of gasoline are intended to serve two conflicting purposes—but do a poor job with both. Continue reading →
I just posted information about David Clark’s pending lecture on “The Internet Today and Tomorrow” on my blog, DrewClark.com, and further information is also avai
lable at the Information Economy Project web site at George Mason University School of Law. (I’m the Assistant Director at the Information Economy Project, which aims to bri
ng the rigor of law & economics to issues of telecommunications and technology policy.)
The lecture, by Computer Science Professor David Clark, is the latest in the Information Economy Project’s “Big Ideas About Information” lecture series.
The Internet is now sufficiently embedded in society that it is regularly triggering social, economic and regulatory issues. The hot topics of today are network neutrality, network management, and the question of imposing regulatory limits on Internet service providers. However, those are just today’s hot topics. What will happen tomorrow? Can we speculate and perhaps get a bit ahead of the curve?
In this talk, Professor Clark will start with a perspective on today’s issue of network neutrality and the role of the Internet service provider, and will then look further into the future to look at some emerging issues, such as the role of the social network as a platform, the problems of building a more secure and available Internet, the emerging requirement for identity mechanisms, and the industrial implications of network virtualization and overlays. This talk will describe some new ideas from the technical community that might shift the landscape of regulation and industrial structure.
Continue reading →
The new Whitehouse.gov went live shortly after Barack Obama became president yesterday. It has much of the look and feel of his transition Web site, Change.gov.
Among the featured items on the homepage today (they will change regularly, of course) is the site itself and the new administration’s commitment to transparency. However, the actual terms of that commitment come up pretty anemic.
In a post on the White House blog, Director of New Media Macon Phillips says:
President Obama has committed to making his administration the most open and transparent in history, and WhiteHouse.gov will play a major role in delivering on that promise. The President’s executive orders and proclamations will be published for everyone to review, and that’s just the beginning of our efforts to provide a window for all Americans into the business of the government. You can also learn about some of the senior leadership in the new administration and about the President’s policy priorities.
Executive orders and proclamations? Information about senior leadership and the President’s priorities? That’s not breaking any new ground on transparency.
The transition’s “Seat at the Table” program required “any documents from official meetings with outside organizations [to] be posted on our website for people to review and comment on.”
The decision to port this practice over to the White House has either not been made, or has been decided against. Given that meetings are already happening, it will be a tough policy to implement if it is not implemented right away.
There is an “Office of Public Liaison” (and intergovernmental affairs) on the Whitehouse.gov site, but it’s nothing more than an email submission form at this point. “More ways for you to interact” are promised.
Words aren’t deeds, and it’s already too late to demonstrate a day-one commitment to transparency. Let’s hope the first steps of the new administration are not steps away from the important transparency precedents set by the transition.
Update: As I wrote this post, news stories were coming out about new executive orders coming out dealing with ethics and transparency. Though I haven’t been able to find them yet – hint hint, Whitehouse.gov – the change to the interpretation of FOIA sound like a welcome, if modest, step in the right direction.
It appears that the long legal saga of the Child Online Protection Act of 1998 (COPA) has finally come to a close. This morning, according to AP, the U.S. Supreme Court rejected the government’s latest request to revive the law, which was stuck down as an unconstitutional violation of the First Amendment by lower courts and never went into effect.
COPA was an effort by Congress to modify the Communications Decency Act of 1996 (CDA) in response to the Supreme Court’s decision in Reno v. ACLU finding that the CDA was unconstitutionally over-broad. COPA sought to narrow the scope of regulation and protect minors from sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. Although narrower than the CDA, COPA was immediately challenged and also blocked by lower courts because it was still too sweeping in effect. Moreover, the courts found there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.
Following the initial challenge, COPA then became the subject of an epic, decade-long legal battle that finally concluded today when the U.S. Supreme Court refused to revisit the law. COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004. Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal today, lower court rulings stand and COPA will remain unconstitutional and unenforceable.
The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.
While COPA is now dead and buried, it would be foolish to think this is the end of efforts to legislate on this front. Although it remains unclear what the legislative response will look like during a time of Democratic rule, I am certain that legislation will be floated in short order (i.e., “Son of COPA”) to try to get around the constitutional issues and regulate objectionable online content. If legislators were smart, they’d avoid legally risky solutions like more centralized filtering mandates or age verification requirements. They’d be on safer ground to consider going the subsidy route and finding a way to get parental control tools in the hands of more families and institutions. I’m not saying that I favor such subsidies, merely that such an approach would almostly certainly pass legal muster and probably wouldn’t even be challenged in court. They might also consider more public education / PSA-driven approached to online safety. Those approaches may end up finding more support in a Democratic Congress and administration anyway.
[More coverage at NYT, Reuters, CNet and Ars.]
Clearly, something must be done to counter the evil corporate cabal known as “the Cloud Elders” and the “Knights Doppler” who are behind the blatant pro-weather bias displayed daily on the Weather Channel. Perhaps a Fairness Doctrine for Weather Reporting?
Thank God the hard-working folks at Fairness in Media unearthed this vicious anti-democratic conspiracy.
Weather Channel Accused of Pro-Weather Bias
Three passages from Obama’s inaugural address stand out as important for the mix of technology policy issues covered here at the TLF. On technology policy (a non-trivial 5.4% of the address by word count):
For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act – not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology’s wonders to raise health care’s quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories…. All this we can do. And all this we will do.
On how to determine whether government intervention is warranted:
The question we ask today is not whether our government is too big or too small, but whether it works…. Where the answer is yes, we intend to move forward.
On regulatory policy:
Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control….
So what does all this mean for tech policy? Continue reading →
The European Commission may order Microsoft to strip Internet Explorer from certain versions of Windows, according to a preliminary ruling against Microsoft stemming from a complaint brought by Opera. Opera claims that Microsoft is “abusing its dominant position” by bundling IE with Windows, and consequently denying consumers “genuine choice” among web browsers.
If the European Commission upholds Opera’s complaint against Microsoft, it wouldn’t be the first time Microsoft has been found guilty of antitrust violations stemming from applications bundled with Windows.
Back in 2004, the Commission ruled that it was illegal for Microsoft to bundle its Windows Media Player with Windows and ordered Microsoft to offer a Media Player-less version of the operating system. Microsoft responded by unveiling the wryly named “Windows XP Reduced Media Edition.” Unsurprisingly, the European Commission rejected the name, so Microsoft renamed the OS “Windows N.”
Despite Windows N’s fairly neutral-sounding name, consumers showed little interest in Windows N when it hit the shelves. It’s quite obvious why Windows N was a flop–why would anybody want to run an operating system lacking useful components, especially when plenty of alternatives are available online at the click of a button?
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.