From the time Tom Wheeler was nominated to become the next FCC Chairman, many have wondered, “What would Wheeler do?” Though it is still early in his chairmanship, the only ruling issued in Chairman Wheeler’s first meeting signals a pro-investment approach to communications regulation.
The declaratory ruling clarified that the FCC would evaluate foreign investment in broadcast licensees that exceeds the 25 percent statutory benchmark using its existing analytical framework. It had previously been unclear whether broadcasters were subject to the same standard as other segments of the communications industry. The ruling recognized that providing broadcasters with regulatory certainty in this respect would promote investment and that greater investment yields greater innovation.
The FCC’s decision to apply the same standards for reviewing foreign ownership of broadcasters as it applies to other segments of the communications industry is very encouraging. It affirms the watershed policy decisions in the USF/ICC Transformation Order, in which the FCC concluded that “leveling the playing field” promotes competition whereas implied subsidies deter investment and are “unfair for consumers.”
Chairman Wheeler’s separate statement is also very encouraging. Its first sentence declares that, “Promoting a regulatory framework that does not inhibit the flow of capital to the US communications sector is an important goal of Commission policy.” This Chairman understands that, in a global economy, U.S. companies must compete with innovators around the world to obtain the necessary investment to develop new information technologies and deploy new communications infrastructure. His separate statement indicates the Chairman’s intent to renew the FCC’s commitment to encouraging private investment.
Regrettably, the Chairman’s separate statement is potentially troubling as well. After noting that the broadcast incentive auction is intended to allow the market to assure that the spectrum is put to its highest and best use, Chairman Wheeler says he will “assess foreign ownership petitions and applications by looking at, among other factors, whether they will help to fulfill these goals, including efficient spectrum usage.”
It is not entirely clear what the Chairman meant by this non sequitur (would the FCC impose channel sharing conditions on stations seeking approval for foreign investment exceeding the benchmark?). But it indicates a willingness to use the FCC’s authority over mergers and acquisitions to promote unrelated policy goals through the imposition of unrelated conditions. As I’ve noted previously, using the FCC’s transaction authority in this way silences public debate over critical policy issues and shields the resulting decision from judicial review – due process protections that are essential to ensure that the FCC acts in the public interest. Ironically, the prospect of unpredictable, case-by-case conditions on foreign investment would appear to be at odds with the Chairman’s goal of promoting a regulatory framework that doesn’t inhibit the flow of private capital to the U.S. communications industry.
It is also possible that the Chairman was merely attempting to deter speculative investments in broadcast spectrum that could sabotage the incentive auction. The success of the incentive auction is critical to the future of our mobile broadband ecosystem, and it is appropriate that the FCC be mindful of sudden, significant foreign investments in broadcast spectrum in these circumstances.
It is still early in Wheeler’s chairmanship, and the future is bright in the spring. If the Chairman maintains his focus on pro-investment policies during his term, the future could be brighter in every season.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.