public interest – Technology Liberation Front https://techliberation.com Keeping politicians' hands off the Net & everything else related to technology Thu, 03 Apr 2025 23:20:10 +0000 en-US hourly 1 6772528 Running List of My Research on AI, ML & Robotics Policy https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/ https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/#respond Fri, 29 Jul 2022 12:51:54 +0000 https://techliberation.com/?p=77020

[last updated 4/3/2025 – Check my Medium page for latest posts]

This a running list of all the essays and reports I’ve already rolled out on the governance of artificial intelligence (AI), machine learning (ML), and robotics. Why have I decided to spend so much time on this issue? Because this will become the most important technological revolution of our lifetimes. Every segment of the economy will be touched in some fashion by AI, ML, robotics, and the power of computational science. It should be equally clear that public policy will be radically transformed along the way.

Eventually, all policy will involve AI policy and computational considerations. As AI “eats the world,” it eats the world of public policy along with it. The stakes here are profound for individuals, economies, and nations. As a result, AI policy will be the most important technology policy fight of the next decade, and perhaps next quarter century. Those who are passionate about the freedom to innovate need to prepare to meet the challenge as proposals to regulate AI proliferate.

There are many socio-technical concerns surrounding algorithmic systems that deserve serious consideration and appropriate governance steps to ensure that these systems are beneficial to society. However, there is an equally compelling public interest in ensuring that AI innovations are developed and made widely available to help improve human well-being across many dimensions. And that’s the case that I’ll be dedicating my life to making in coming years.

Here’s the list of what I’ve done so far. I will continue to update this as new material is released:

2025

2024

2023

2022

2021 (and earlier)

]]> https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/feed/ 0 77020 The Classical Liberal Approach to Digital Media Free Speech Issues https://techliberation.com/2021/12/08/the-classical-liberal-approach-to-digital-media-free-speech-issues/ https://techliberation.com/2021/12/08/the-classical-liberal-approach-to-digital-media-free-speech-issues/#comments Wed, 08 Dec 2021 20:41:45 +0000 https://techliberation.com/?p=76930

On December 13th, I will be participating in an Atlas Network panel on, “Big Tech, Free Speech, and Censorship: The Classical Liberal Approach.” In anticipation of that event, I have also just published a new op-ed for The Hill entitled, “Left and right take aim at Big Tech — and the First Amendment.” In this essay, I expand upon that op-ed and discuss the growing calls from both the Left and the Right for a variety of new content regulations. I then outline the classical liberal approach to concerns about free speech platforms more generally, which ultimately comes down to the proposition that innovation and competition are always superior to government regulation when it comes to content policy.

In the current debates, I am particularly concerned with calls by many conservatives for more comprehensive governmental controls on speech policies enforced by various private platforms, so I will zero in on those efforts in this essay. First, here’s what both the Left and the Right share in common in these debates: Many on both sides of the aisle desire more government control over the editorial decisions made by private platforms. They both advocate more political meddling with the way private firms make decisions about what types of content and communications are allowed on their platforms. In today’s hyper-partisan world,” I argue in my Hill column, “tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day — like property rights, free speech and editorial independence — become disposable. These are things we take for granted until they’ve been chipped away at and lost.”

Despite a shared objective for greater politicization of media markets, the Left and the Right part ways quickly when it comes to the underlying objectives of expanded government control. As I noted in my Hill op-ed:

there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

This makes life very lonely for free speech defenders and classical liberals. Usually in the past, we could count on the Left to be with us in some free speech battles (such as putting an end to “indecency” regulations for broadcast radio and television), while the Right would be with us on others (such as opposition to the “Fairness Doctrine,” or similar mandates). Today, however, it is more common for classical liberals to be fighting with both sides about free speech issues.

My focus is primarily on the Right because, with the rise of Donald Trump and “national conservatism,” there seems to be a lot of soul-searching going on among conservatives about their stance toward private media platforms, and the editorial rights of digital platforms in particular.

In my new  Hill essay and others articles (all of which are listed down below), I argue there is a principled classical liberal approach to these issues that was nicely outlined by President Ronald Reagan in his 1987 veto of Fairness Doctrine legislation, when he said:

History has shown that the dan­gers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee.

Let’s break that line down. Reagan admits that media bias can be a real thing. Of course it is! Journalists, editors, and even the companies they work for all have specific views. They all favor or disfavor certain types of content. But, at least in the United States, the editorial decisions made by these private actors are protected by the First Amendment. Section 230 is really quite secondary to this debate, even though some Trumpian conservatives wrongly suggest that it’s the real problem here. In reality, national conservatives would need to find a way to work around well-established First Amendment protections if they wanted to impose new restrictions on the editorial rights of private parties.

But why would they want to do that? Returning to the Reagan veto statement, we should remember how he noted that, even if the First Amendment did not protect the editorial discretion of private media platforms, bureaucratic regulation was not the right answer to the problem of “bias.”  Competition and choice were the superior answer. This is the heart and soul of the classical liberal perspective: more innovation is always superior to more regulation.

For the past 30 years, conservatives and classical liberals were generally aligned on that point. But the ascendancy of Donald Trump created a rift in that alliance that now threatens to grow into a chasm as more and more Right-of-center people begin advocating for comprehensive control of media platforms.

The problems with that are numerous beginning with the fact that none of the old rationales for media controls work (and most of them never did). Consider the old arguments justifying widespread regulation of private media:

  • “Scarcity” was the oldest justification for media regulation, but we live in the exact opposite world today, in which the most common complaint about media is the abundance of it!
  • Conversely, the supposed “pervasiveness” of some media (namely broadcasting) was used as a rationale for government censorship in the past. But that, too, no longer works because in today’s crowded media marketplace and Internet-enabled world, all forms of communications and entertainment are equally pervasive to some extent.
  • State ownership and licensing of spectrum was another rationale for control that no longer works. No digital media platforms need federal licenses to operate today. So, that hook is also gone. Moreover, the answer to the problem of government ownership of media is to stop letting the government own and control media assets, including spectrum.
  • “Fairness” is another old excuse for control, with some regulatory advocates suggesting that five unelected bureaucrats at the Federal Communications Commission (or some other agency) are well-suited to “balance” the airing of viewpoints on media platforms. Of course, America’s disastrous experience with the Fairness Doctrine proved just how wrong that thinking was. [I summarize all the evidence proving that here.]

That leaves a final, more amorphous rationale for media control: ” gatekeeper” concerns and assertions that private media platforms can essentially become “state actors.” In the wake of Donald Trump’s “de-platorming” from Facebook and Twitter, many of his supporters began adopting this language in defense of more aggressive government control of private media platforms, including the possibility of declaring those platforms common carriers and demanding that some sort of amorphous “neutrality” mandates be imposed on them. But as Berin Szóka and Corbin Barthold of Tech Freedom note:

Where courts have upheld imposing common carriage burdens on communications networks under the First Amendment, it has been because consumers reasonably expected them to operate conduits. Not so for social media platforms. [. . . ] When it comes to the regulation of speech on social media, however, the presumption of content neutrality does not apply. Conservatives present their criticism of content moderation as a desire for “neutrality,” but forcing platforms to carry certain content and viewpoints that they would prefer not to carry constitutes a “content preference” that would trigger strict scrutiny. Under strict scrutiny, any “gatekeeper” power exercised by social media would be just as irrelevant as the monopoly power of local newspapers was in [previous Supreme Court holdings].

Put simply, efforts to stretch extremely narrow and limited common carriage precedents to fit social media just don’t work. We’ve already seen lower courts declare that recently when blocking the enforcement of new conservative-led efforts in Florida and Texas to limit the editorial discretion of private social media platforms. If conservatives really hope to get around these legal barriers to regulation, what would be needed would be a more far-reaching strike at the First Amendment itself. That would entail a jurisprudential revolution at the Supreme Court — reversing about a century of free speech precedents — or an some sort of an effort to amend the First Amendment itself. These things are almost certainly not going to occur.

But, again, this hasn’t stopped some conservatives from pitching extreme solutions in their efforts to regulate digital media at both the state and federal level. I discuss these efforts in previous essays on, “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality,“ “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet,“ and “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’.“ Perhaps some Trump-aligned conservatives understand that these legislative efforts are unlikely to work, but they continue to push them in an attempt to make life hell for tech platforms, or perhaps just to troll the Left and “own the Libs.”

On the other hand, some conservatives seem to really believe in some of the extreme ideas they are tossing around. What is particular troubling about these efforts is the way — following Trump’s lead — some conservatives, including even more mainstream conservative groups like the Heritage Foundation, are increasingly referring to private media platforms as “the enemy of the people.” That’s the kind of extremist language typically used by totalitarian thugs and Marxist lunatics who so hate private enterprise and freedom of speech that they are willing to adopt a sort of burn-the-village-to-save-it rhetorical approach to media policy.

And speaking of Marxists, here’s what is even more incredible about these efforts by some conservatives to use such rationales in support of comprehensive media regulation: It is all based on the “media access” playbook concocted by radical Leftist scholars a generation ago. As I summarized in my essay on, “The Surprising Ideological Origins of Trump’s Communications Collectivism“:

Media access advocates look to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. Media access theory dispenses with both the editorial discretion rights and private property rights of private speech platforms. Private platforms become subject to the political whims of policymakers who dictate “fair” terms of access. We can think of this as communications collectivism.

Media access doctrine is rooted in an arrogant, elitist, anti-property, anti-freedom ethic that suggest the State is a better position to dictate what can and cannot be said on private speech platforms. “It’s astonishing, yet nonetheless true,” I continued on in that essay, “that the ideological roots of Trump’s anti-social media campaign lie in the works of those extreme Leftists and even media Marxists. He has just given media access theory his own unique nationalistic spin and sold this snake oil to conservatives.” Yet, Trump and other national conservatives are embracing this contemptible doctrine because now more than ever the ends apparently justify the means in American politics. Nevermind that all this could come back to haunt them when the Left somehow leverages this regulatory apparatus to control Fox News or other sites and content that conservatives favor! Once media platforms are viewed as just another thing to be controlled by politics, the only question is which politics and how are those politics enforced? Certainly both the Left and the Right cannot both have their way given all that current divides them.

Finally, what is utterly perplexing about all this is how much thanks national conservatives really owe to the major digital platforms they now seek to destroy. As I noted in my new Hill op-ed:

There has never been more opportunity for conservative viewpoints than right now. Each day on Facebook, the top-10 most shared links are dominated by pundits such as Ben Shapiro, Dan Bongino, Dinesh D’Souza and Sean Hannity. Right-leaning content is shared widely on Twitter each day. Websites like Dailywire.com and Foxnews.com get far more traffic than the New York Times or CNN.

Thus, conservatives might be shooting themselves in the foot if they were able to convince more legislatures to adopt the media access regulatory playbook because it could have profound unintended consequences once the Left uses those tools to somehow restrict access to “hate speech” or “misinformation” — and then define it so broadly so as to include much of the top material posted by conservatives on Facebook and Twitter ever day.

Not all conservatives have drank the media access kool-aid. In the wake of Trump’s deplatforming from a few major sites, a wave of new Right-leaning digital services are being planned or have already launched. (Axios and Forbes recently summarized some of these efforts.) I don’t know which will of these efforts will succeed, but more competition and platform-building are certainly superior to current calls by some Trump supporters for government regulation of mainstream social media services.

Again, this is the old Reagan vision at its finest! We can achieve a better media landscape, “only through the freedom and compe­tition that the First Amendment sought to guarantee,” not through bureaucratic regulation. It remains the principled path forward.

Additional Reading :

Older essays & testimony :

]]> https://techliberation.com/2021/12/08/the-classical-liberal-approach-to-digital-media-free-speech-issues/feed/ 2 76930 The FCC’s new Office of Economics and Analytics and the public interest https://techliberation.com/2018/02/09/the-fccs-new-office-of-data-and-analytics-and-the-public-interest/ https://techliberation.com/2018/02/09/the-fccs-new-office-of-data-and-analytics-and-the-public-interest/#respond Fri, 09 Feb 2018 18:32:59 +0000 https://techliberation.com/?p=76230

Last week the FCC commissioners voted to restructure the agency and create an Office of Economics and Analytics. Hopefully the new Office will give some rigor to the “public interest standard” that guides most FCC decisions. It’s important the FCC formally inject economics in to public interest determinations, perhaps much like the Australian telecom regulator’s “total welfare standard,” which is basically a social welfare calculation plus consideration of “broader social impacts.”

In contrast, the existing “standard” has several components and subcomponents (some of them contradictory) depending on the circumstances; that is, it’s no standard at all. As the first general counsel of the Federal Radio Commission, Louis Caldwell, said of the public interest standard, it means

as little as any phrase that the drafters of the Act could have used and still comply with the constitutional requirement that there be some standard to guide the administrative wisdom of the licensing authority.

Unfortunately, this means public interest determinations are largely shielded from serious court scrutiny. As Judge Posner said of the standard in Schurz Communications v. FCC,

So nebulous a mandate invests the Commission with an enormous discretion and correspondingly limits the practical scope of responsible judicial review.

Posner colorfully characterized FCC public interest analysis in that case:

The Commission’s majority opinion … is long, but much of it consists of boilerplate, the recitation of the multitudinous parties’ multifarious contentions, and self-congratulatory rhetoric about how careful and thoughtful and measured and balanced the majority has been in evaluating those contentions and carrying out its responsibilities. Stripped of verbiage, the opinion, like a Persian cat with its fur shaved, is alarmingly pale and thin.

Every party who does significant work before the FCC has agreed with Judge Posner’s sentiments at one time or another.

Which brings us to the Office of Economics and Analytics. Cost-benefit analysis has its limits, but economic rigor is increasingly important as the FCC turns its attention away from media regulation and towards spectrum assignment and broadband subsidies.

The worst excesses of FCC regulation are in the past where, for instance, one broadcaster’s staff in 1989 “was required to review 14,000 pages of records to compile information for one [FCC] interrogatory alone out of 299.” Or when, say, FCC staff had to sift through and consider 60,000 TV and radio “fairness” complaints in 1970. These regulatory excesses were corrected by economists (namely, Ronald Coase’s recommendation that spectrum licenses be auctioned, rather than given away for free by the FCC after a broadcast “beauty contest” hearing), but history shows that FCC proceedings spiral out of control without the agency intending it.

Since Congress gave such a nebulous standard, the FCC is always at risk of regressing. Look no further than the FCC’s meaningless “Internet conduct standard” from its 2015 Open Internet Order. This “net neutrality” regulation is a throwback to the bad old days, an unpredictable conduct standard that–like the Fairness Doctrine–would constantly draw the FCC into social policy activism and distract companies with interminable FCC investigations and unknowable compliance requirements.

In the OIO’s mercifully short life, we saw glimpses of the disputes that would’ve distracted the agency and regulated companies. For instance, prominent net neutrality supporters had wildly different views about whether a common practice, “zero rating” of IP content, by T-Mobile violated the Internet conduct standard. Chairman Tom Wheeler initially called it “highly innovative and highly competitive” while Harvard professor Susan Crawford said it was “dangerous” and “malignant” and should be outlawed “immediately.” The nearly year-long FCC investigations into zero rating and the equivocal report sent a clear, chilling message to ISPs and app companies: 20 years of permissionless innovation for the Internet was long enough. Submit your new technologies and business plans to us or face the consequences.

Fortunately, by rescinding the 2015 Order and creating the new economics Office, Chairman Pai and his Republican colleagues are improving the outlook for the development of the Internet. Hopefully the Office will make social welfare calculations a critical part of the public interest standard.

]]> https://techliberation.com/2018/02/09/the-fccs-new-office-of-data-and-analytics-and-the-public-interest/feed/ 0 76230 New Filing & Working Paper on the Regulation of the Sharing Economy https://techliberation.com/2015/05/26/new-filing-working-paper-on-the-regulation-of-the-sharing-economy/ https://techliberation.com/2015/05/26/new-filing-working-paper-on-the-regulation-of-the-sharing-economy/#comments Tue, 26 May 2015 17:41:04 +0000 http://techliberation.com/?p=75562

Along with colleagues at the Mercatus Center at George Mason University, I am releasing two major new reports today dealing with the regulation of the sharing economy. The first report is a 20-page filing to the Federal Trade Commission that we are submitting to the agency for its upcoming June 9th workshop on “The “Sharing” Economy: Issues Facing Platforms, Participants, and Regulators.” We have been invited to participate in that event and I will be speaking on the fourth panel of the workshop. The filing I am submitting today for that workshop was co-authored with my Mercatus colleagues Christopher Koopman and Matt Mitchell.

The second report we are releasing today is a new 47-page working paper entitled, “How the Internet, the Sharing Economy, and Reputational Feedback Mechanisms Solve the ‘Lemons Problem.'” This study was co-authored with my Mercatus colleagues Christopher Koopman, Anne Hobson, and Chris Kuiper.

I will summarize each report briefly here.

In our new filing to the FTC, we address the five questions the Commission set forth in its workshop annoucement. Those five questions are as follows:

  • How can state and local regulators meet legitimate regulatory goals (such as protecting consumers, and promoting public health and safety) in connection with their oversight of sharing economy platforms and business models, without also restraining competition or hindering innovation?
  • How have sharing economy platforms affected competition, innovation, consumer choice, and platform participants in the sectors in which they operate? How might they in the future?
  • What consumer protection issues—including privacy and data security, online reviews and disclosures, and claims about earnings and costs—do these platforms raise, and who is responsible for addressing these issues?
  • What particular concerns or issues do sharing economy transactions raise regarding the protection of platform participants? What responsibility does a sharing economy platform bear for consumer injury arising from transactions undertaken through the platform?
  • How effective are reputation systems and other trust mechanisms, such as the vetting of sellers, insurance coverage, or complaint procedures, in encouraging consumers and suppliers to do business on sharing economy platforms?

We provide detailed answers to each of these questions as well as one additional major question that was not posed by the Commission in its workshop notice but which is, no doubt, on the minds of many at the agency and outside it: What should the FTC do about state and local barriers to entry and innovation that might be thwarting the growth of the sharing economy? (I blogged about that issue here a couple of weeks ago and our filing includes that discussion.)

Please take a look at our filing for detailed answers to each of these questions. (Incidentally, our filing is an extension of an earlier working paper that Koopman, Mitchell, and I released late last year on “The Sharing Economy and Consumer Protection Regulation: The Case for Policy Change.”) But, to briefly highlight the thrust of our argument, here’s a passage from our new filing:

As the debate surrounding the sharing economy moves forward, policymakers must keep in mind that merely because regulations were once justified on the grounds of consumer protection does not mean they accomplished those goals or that they are still needed today. Even well-intentioned policies must be judged against real-world evidence. Unfortunately, the evidence shows that many traditional consumer protection regulations hurt consumers; in the words of New York Attorney General Eric Schneiderman, they are often “cumbersome, and some are just plain protectionist.” Markets, competition, reputational systems, and ongoing innovation often solve problems better than regulation when they are given a chance to do so. There are two reasons for this. First, market imperfections create powerful profit opportunities for entrepreneurs who are able to find ways to correct them. Second, regulatory solutions too often undermine competition and lock in inefficient business models.

We continue on to explain exactly why that is the case, while also offering some constructive solutions to other issues that are on the minds of regulators.

Meanwhile, the new working paper we are releasing today provides much greater detail on the fifth of the five questions the FTC posed in its workshop notice regarding reputation systems and other trust mechanisms. Here is the abstract from the paper:

This paper argues that the sharing economy—through the use of the Internet and real time reputational feedback mechanisms—is providing a solution to the lemons problem that many regulators have spent decades attempting to overcome. Section I provides an overview of the sharing economy and traces its rapid growth. Section II revisits the lemons theory as well as the various regulatory solutions proposed to deal with the problem of asymmetric information. Section III discusses the relationship between reputation and trust and analyzes how reputational incentives affect commercial interactions. Section IV discusses how information asymmetries were addressed in the pre-Internet era. It also discusses how the evolution of both the Internet and information systems (especially the reputational feedback mechanisms of the sharing economy) addresses the lemons problem. Section V explains how these new realities affect public policy and concludes that asymmetric information is not a legitimate rationale for policy intervention in light of technological changes. We also argue that continued use of this rationale to regulate in the name of consumer protection might, in fact, make consumers worse off. This has ramifications for the current debate over regulation of the sharing economy.

We believe that our research makes it clear “how the sharing economy relies upon—and has helped spur the growth of—sophisticated reputational feedback mechanisms that facilitate online trust and commerce, overcoming many of the information asymmetries that seemed intractable… just a generation ago. In combination with online review services and other information-sharing technologies enabled by the Internet,” we conclude, “these reputational tools can help create more effective, and largely self-regulating, markets that provide more information to more individuals than ever before.”

We look forward to continuing engagement with officials at the FTC and other policymakers at the federal, state, and even international level on these issues. We hope our research will help legislators and regulators find sensible ways to adjust policy for the sharing economy so as not to derail the sort of “permissionless innovation” that has thus far powered this exciting sector and produced the many pro-consumer benefits flowing from it. Check out our filing and new paper for more details.

]]> https://techliberation.com/2015/05/26/new-filing-working-paper-on-the-regulation-of-the-sharing-economy/feed/ 1 75562 What is “Optimal Interoperability”? A Review of Palfrey & Gasser’s “Interop” https://techliberation.com/2012/06/11/what-is-%e2%80%9coptimal-interoperability%e2%80%9d-a-review-of-palfrey-gasser%e2%80%99s-%e2%80%9cinterop%e2%80%9d/ https://techliberation.com/2012/06/11/what-is-%e2%80%9coptimal-interoperability%e2%80%9d-a-review-of-palfrey-gasser%e2%80%99s-%e2%80%9cinterop%e2%80%9d/#comments Mon, 11 Jun 2012 17:36:47 +0000 http://techliberation.com/?p=41384

I’m pretty rough on all the Internet and info-tech policy books that I review. There are two reasons for that. First, the vast majority of tech policy books being written today should never have been books in the first place. Most of them would have worked just fine as long-form (magazine-length) essays. Too many authors stretch a promising thesis into a long-winded, highly repetitive narrative just to say they’ve written an entire book about a subject. Second, many info-tech policy books are poorly written or poorly argued. I’m not going to name names, but I am frequently unimpressed by the quality of many books being published today about digital technology and online policy issues.

The books of Harvard University cyberlaw scholars John Palfrey and Urs Gasser offer a welcome break from this mold. Their recent books, Born Digital: Understanding the First Generation of Digital Natives, and Interop: The Promise and Perils of Highly Interconnected Systems, are engaging and extremely well-written books that deserve to be books. There’s no wasted space or mindless filler. It’s all substantive and it’s all interesting. I encourage aspiring tech policy authors to examine their works for a model of how a book should be done.

In a 2008 review, I heaped praise on Born Digital and declared that this “fine early history of this generation serves as a starting point for any conversation about how to mentor the children of the Web.” I still recommend highly to others today. I’m going to be a bit more critical of their new book, Interop, but I assure you that it is a text you absolutely must have on your shelf if you follow digital policy debates. It’s a supremely balanced treatment of a complicated and sometimes quite contentious set of information policy issues.

In the end, however, I am concerned about the open-ended nature of the standard that Palfrey and Gasser develop to determine when government should intervene to manage or mandate interoperability between or among information systems. I’ll push back against their amorphous theory of “optimal interoperability” and offer an alternative framework that suggests patience, humility, and openness to ongoing marketplace experimentation as the primary public policy virtues that lawmakers should instead embrace.

Interop is Important, but Often Difficult & Filled with Trade-Offs

Palfrey and Gasser begin by noting that “there is no single, agreed-upon definition of interoperability” and that “there are even many views about what interop is and how it should be achieved” (p. 5). They set out to change that by developing “a normative theory identifying what we want out of all this interconnectivity” that the information age has brought us (p. 3).

Generally speaking, Palfrey and Gasser believe increased interoperability — especially among information networks and systems — is a good thing because it “provides consumers greater choice and autonomy” (p. 57), “is generally good for competition and innovation” (p. 90), and “can lead to systemic efficiencies” (p. 129).

But they wisely acknowledge that there are trade-offs, too, noting that “this growing level of interconnectedness comes at an increasingly high price” (p. 2). Whether we are talking about privacy, security, consumer choice, the state of competition, or anything else, Palfrey and Gasser argue that “the problems of too much interconnectivity present enormous challenges both for organizations and for society at large” (p. 2). Their chapter and privacy and security offers many examples, but one need only look around at their own digital existence to realize the truth of this paradox. The more interconnected our information systems become, and the more intertwined our social and economic lives become with those systems, the greater the possibility of spam, viruses, data breaches, and various types of privacy or reputational problems. Interoperability giveth and it taketh away.

When Does “the Public Interest” Demand Interoperability Regulation?

So, how do we know when increased interoperability is good for us or society? How do we strike a reasonable balance? And, most controversially, when should government intervene to tip the balance in one direction or another?

Palfrey and Gasser return to these questions repeatedly throughout the book but admit that their answers will be dissatisfying since “there is no single form or optimal amount of interoperability that will suit every circumstance” (p. 76). Thus, “most of the specifics of how to bring interop about [must] be determined on a case-by-case basis (p. 17). They elaborate:

That can feel unsatisfying. But it is an essential truth: the most interesting interop problems relate to society’s most complex and most fundamental systems. Their answers are never simple to come by, nor are they easy to implement. This characteristic of interop theory is a feature, not a bug. … The price to be paid for striving for a universal principle at the level of theory is that such a theory is full of nuances when it comes to application and practice (p. 17-18).

Fair enough. Yet, Palfrey and Gasser also make it clear they want government(s) to play an active role in ensuring optimal interoperability. They say they favor “blended approaches that draw upon the comparative advantages of the private and public sector” (p. 161), but they argue that government should feel free to tip or nudge interoperability determinations in superior directions. “If deployed with skill,” they argue, “the law can play a central role in ensuring that we get as close as possible to optimal levels of interoperability in complex systems” (p. 88).

That phrase — “optimal level of interoperability” — pops up repeatedly throughout the book. So, too, does the phrase “the public interest.” Palfrey and Gasser argue that governments must look out for “the public interest” and “optimal interoperability” since “market forces do not automatically lead to appropriate standards or to the adoption of the best available technology” (p. 167). Here they introduce two additional amorphous values that complicate the debate: “appropriate standards” and “best available technology.”

The fundamental problem this “public interest” approach to interoperability regulation is that it is no better than the “I-know-it-when-I-see-it” standard we sometimes at work in the realm of speech regulation. It’s an empty vessel, and if it is the lodestar by which policymakers make determinations about the optimal level of interoperability, then it leaves markets, innovators, and consumers subject to the arbitrary whims of what a handful of politicians or regulators think constitutes “optimal interoperability,” “appropriate standards,” and “best available technology.”

On the Limits of Knowledge

Palfrey and Gasser’s framework feels more than just “unsatisfying” in this regard; it feels downright insufficient. That’s because it is missing a major variable: the extent to which state actors are able to adequately define those terms or accurately forecast the future needs of markets or citizen-consumers.

Surprisingly, Palfrey and Gasser don’t really spend much time discussing the specific remedies the state might impose to achieve optimal interoperability. I would have liked to have seen them develop a matrix of interop options and then outline the strengths and weaknesses of each. But even absent a more detailed discussion of possible regulatory remedies, I would have settled for more concrete answers to the following questions: Why are we to assume that regulators possess the requisite knowledge needed to know when it makes sense to foreclose ongoing marketplace experimentation? And why should we trust that, by substituting their own will for that of countless other actors in the information technology marketplace, we will be left better off?

The closest Palfrey and Gasser get to defining a firm standard for when and why such state intervention is warranted comes on page 173 when they are discussing the need for the state to establish sound reasons for intervention. They argue:

The objective should not be interoperability per se but, rather, one or more public policy goal to which interoperability can lead. The goals that usually make sense are innovation and competition, but other objectives might include consumer choice, ease of use of a technology or system, diversity, and so forth (p. 173).

This is a bit better, but it still doesn’t fully grapple with the cost side of the cost-benefit calculus for intervention. Palfrey and Gasser are willing to at least acknowledge some of those problems when they remark that “the state is rarely in a position to call a winner among competing technologies” (p. 174). Moreover,

Lawmakers need to keep in view the limits of their own effectiveness when it comes to accomplishing optimal levels of interoperability. Case studies of government intervention, especially where complex information technologies are involved, show that states tend to be ill suited to determine on their own what specific technology will be the best option for the future (p. 175)

Quite right! Yet, that insight does not seem to influence their calls elsewhere in the book for regulatory activism. That’s a shame since the admonition about policymakers recognizing the “limits of their own effectiveness” should be able to help us devise some limiting principles regarding the state’s role.

Toward an Alternative Theory: Experimental, Evolutionary Interoperability

Allow me to offer a different theory of optimal interoperability that flows from these previous insights. It’s based on a more dynamic view of markets and the central importance of experimentation in the face of uncertainty. Let me just go ahead and articulate the core principles of what I will refer to as  “experimental, evolutionary interoperability theory.” Then I’ll explain it in more detail

  • Experimental, evolutionary interoperability : The theory that ongoing marketplace experimentation with technical standards, modes of information production and dissemination, and interoperable information systems, is almost always preferable to the artificial foreclosure of this dynamic process through state action. The former allows for better learning and coping mechanisms to develop while also incentivizing the spontaneous, natural evolution of the market and market responses. The latter (regulatory foreclosure of experimentation) limits that potential.

Palfrey and Gasser would label this a “laissez-faire” theory of interoperability and oppose it since they believe “a pure laissez-faire approach to interop rarely works out well” (p. 160). But they are wrong, at least to the extent they include the sweeping modifier “rarely” to describe this model’s effectiveness. In reality, the vast majority of interoperability that occurs into today’s information economy happens in a completely natural, evolutionary fashion without any significant state intervention whatsoever. In countless small and big ways alike, interconnection and interoperability happens every day throughout society. Yes, it is true that interoperability often happens against the backdrop of a legal system that allows court action to enforce certain rights or address perceived harms, but I would not classify that as a significant direct state intervention to tip or nudge interconnection decisions in one direction or another. And when interoperability doesn’t happen naturally, there are often good reasons it doesn’t and, even if there aren’t, non-interop spawns beneficial marketplace reactions and innovations.

Experimental, evolutionary interoperability theory flows out of Schumpeterian competition theory and the related field of evolutionary economics, but it is also heavily influenced by public choice theory (which stresses the limitations of romanticized theories of politics, planning, and “public interest” regulation). This alternative theory begins by accepting the simple fact that, as Austrian economist F.A. Hayek taught us, “progress by its very nature cannot be planned.” The wiser man, Hayek noted, “is very much aware that we do not know all the answers and that he is not sure that the answers he has are certainly the right ones or even that we can find all the answers.”

Ongoing experimentation with varying business models and modalities of social and economic production allows us to see what consumer choice and trial and error experimentation yields naturally over time. Ongoing experiments with flexible, voluntary interop standards and negotiations also allows us to determine which technological standards seem to benefit consumers in the short-term while also encouraging innovators to leap-frog existing standards and platforms when they become locked-in for too long or seem sub-optimal.

In the short-term, it is entirely possible that such voluntary, evolutionary interop experiments “fail” in various ways. That is often a good thing. Failures are how individuals and a society learn to cope with change and devise systems and solutions to accommodate technological change. As Samuel Beckett once counseled: “Ever tried. Ever failed. No matter. Try Again. Fail again. Fail better.” Progress depends upon an embrace of this uncertainty and acceptance of a world of constant upheaval if we are to learn how to cope, adapt, and move forward.

In this model, technological innovation often springs from the quest for the prize of market power.  Palfrey and Gasser generally reject this Schumpeterian vision of dynamic competition, but they at least do a nice job of describing it:

firms may have a stronger incentive to be innovative when low levels of interoperability promise higher or even monopoly profits. This sort of competition… creates incentives for firms to come up with entirely new generations of technologies or business methods that are proprietary (p. 121).

They reject this approach based on (1) the mistaken notion that the quest of the prize of market power ends in the attainment and preservation of that market power; and (2) the belief that policymakers possess the ability to set us on a better course through wise interventions.

In a moment, I’ll prove why that is misguided by examining a few real-world cases studies. For now, however, let’s return to Palfrey & Gasser’s central operating principle and contrast it with the vision I’ve articulated here. Recall that they argue “it is important to maintain and facilitate diversity in the marketplace. We simply want systems to work together when we want them to and to not work together when we do not.” Again, there is no standard here if one is suggesting this as the principle by which to determine when state intervention is desirable . But if one is looking at that aspirational statement as a description of the natural order of things — namely, that we do indeed “want systems to work together when we want them to and to not work together when we do not” — then that is a perfectly sound principle for understanding why state intervention should be disfavored in all but the most extreme circumstances. To reiterate: We should not allow the state to foreclose interoperability experiments because (a) those experiments have value in and of themselves, and (b) state action is likely to have myriad unintended consequences and unforeseen costs that are not easily remedied or reversed.

There are moments in the book when Palfrey and Gasser appear somewhat sympathetic to the sort of alternative “evolutionary interop” theory I have articulated here. For example, they note that:

The web is a great equalizer for technology firms. As consumers, we have come to expect that everything will work together without incident or interruption. We think it bizarre when something in the digitally networked world does not mesh with something else, perceiving whatever it is to be broken, in need of repair. This high degree of expectation is a powerful driver of interoperability. Market players are increasingly responding to this consumer demand and making these invisible links work for their customers without any government intervention” (p. 28) [italics added]

You won’t be surprised to hear that I agree wholeheartedly! Moreover, what it really proves is that ongoing marketplace experimentation and the evolution of norms and standards generally solve interoperability problems as they develop. That doesn’t mean markets are perfectly competitive or always produce perfect interoperability. But, again, why should we believe state intervention will do a better job? And isn’t it possible that intervention could negatively counter those natural instincts that Palfrey and Gasser describe about how consumers and market actors interact to make those “invisible links” work out as nicely as they do today?

Interop, Competition & Innovation: Some Cases Studies of Evolutionary Interoperability in Action

To better explain experimental, evolutionary interop theory and how it plays out in the real-world, let’s examine the complex relationship between interoperability, competition, and innovation in the information economy through the prism of three case studies: AOL and instant messaging, video game consoles, and smartphones.

AOL

America Online’s (AOL) case study is probably the most profound example of Schumpeterian creative destruction rapidly eroding the market power of a once “dominant” digital giant. Not long ago, AOL was cast as the great villain of online openness and interoperability. In fact, when Lawrence Lessig penned his acclaimed book Code in the late 1990s, AOL was supposedly set to become the corporate enslaver of cyberspace.

For a time, it was easy to see why Lessig and others were worried. Twenty five million subscribers were willing to pay $20 per month to get a guided tour of AOL’s walled garden version of the Internet. Then AOL and media titan Time Warner announced a historic mega-merger that had some predicting the rise of “new totalitarianisms” and corporate “Big Brother.”

Fearing the worst, several conditions were placed on approval of the merger by both the Federal Trade Commission and the Federal Communication Commission. These included “open access” provisions that forced Time Warner to offer the competing ISP service from the second largest ISP at that time (Earthlink) before it made AOL’s service available across its largest cable divisions.  Another provision imposed by the FCC mandated interoperability of instant messaging systems based on the fear that AOL was poised to monopolize that emerging technology.

Palfrey and Gasser suggest this was a necessary and effective intervention. “The AOL IM case is another instance in which the role of government was key in establishing a more interoperable ecosystem” and they credit the FCC’s action with cutting AOL’s share of the IM (p. 68-9). That’s a huge stretch. The reality is that markets and technologies evolved around AOL’s walled garden and decimated whatever advantage the firm had in either the web portal business or instant messaging market.

First, despite all the hand-wringing and regulatory worry, AOL’s merger with Time Warner quickly went off the rails and AOL’s online “dominance” quickly evaporated. Looking back at the deal with TW, Fortune magazine senior editor Allan Sloan called it the “turkey of the decade” since it cost shareholders hundreds of billions. Second, AOL’s attempt to construct the largest walled garden ever also failed miserably as organic search and social networking flourished. Consumers showed they demanded more than the hand-held tour of cyberspace.

Finally, the hysteria about AOL’s threat to monopolize instant messaging and deny interoperability proved particularly unwarranted and also serves as a cautionary tale for those who argue regulation is needed to solve interoperability problems. At the time, well-heeled major competitors like Yahoo and Microsoft already had significant competing IM platforms, and others were rapidly developing. Interoperability among those systems was also spontaneously developing as consumers demanded greater flexibility among and within their communications systems. The development of Trillian, which allowed IM users to see all their various IM feeds at once, was an early precursor of what was to come. Today, anyone can download a free chat client like Digsby or Adium to manage multiple IM and email services from Yahoo!, Google, Facebook and just about anyone else, all within a single interface, essentially making it irrelevant which chat service friends use.

In a truly Schumpetrian sense, innovators came in and disrupted AOL’s plans to dominate instant messaging with innovative offerings that few critics or regulators would have believed possible just a decade ago. Progress happened, and nobody planned it from above. The FCC’s IM interoperability provision was quietly sunset less than three years after its inception since the evolution of technology and markets had rapidly eliminated the perceived problem. That mandate, as it turned out, wasn’t needed at all, and all it probably accomplished during its short life span was to hobble AOL’s ability to find a way to remain relevant in the increasingly competitive Web. 2.0 world.

Video game consoles

At first blush, the video game console wars might seem like the ideal case study for those who favor greater interoperability regulation. After all, in a static sense, why do we really need several competing video game platforms that prevent consumers from playing their games on more than one system? The lack of console interoperability also drives up development costs for game makers. Many of those developers would prefer to just code games for a single, universal gaming platform. Therefore, isn’t this the perfect excuse for state intervention to ensure “optimal interoperability”?

To the contrary, this is another example of why government should generally avoid intervening to try to achieve some sort of artificial optimal interoperability. This market has undergone continuous, turbulent change and witnessed remarkable pro-consumer innovation despite a lack of interoperability.

The video game console wars have raged since the late 1970s. The first generation of consoles was dominated Atari (2600), Mattel (Intellivision), and Coleco (ColecoVision). By the mid-1980s, the industry saw a new cast of characters displace the old players. Nintendo (NES), and Sega (Genesis) took the lead. Atari attempted a rebirth with its “Jaguar” console but failed miserably.

The demise of Atari’s 2600 console was particularly notable. When it debuted in 1977, the system revolutionized the home game market on its way to selling more than 30 million units.  For a few years, it utterly dominated the console market and the company “rushed out games, assuming that its customers would play whatever it released,” notes New York Times reporters Sam Grobart and Ian Austen. But demand rapidly dried up as other consoles and personal computers took the lead with more powerful, flexible platforms and games. In the end, “millions of unsold games and consoles were buried in a New Mexico landfill in 1983. Warner Communications, which bought Atari in 1976 for $28 million, sold it in 1984 for no cash.”

The next generation of machines was dominated by Nintendo and Sega. But by the turn of the century, more new faces appeared and disrupted the second generation of market leaders. Sony (PlayStation) and Microsoft (Xbox) introduced powerful new consoles that continue to evolve to this day. Both consoles have already cycled through three iterations, each increasingly powerful and more functional. Sega dropped out of the console business and refocused on game development. Nintendo managed to survive with its innovative “Wii” system, but has fallen from its perch as king of the console market. Many also forget Apple’s failed run at the console business with its “Pippin” system in the late 1990s. Steve Jobs killed off the console when he returned to once again lead Apple in 1997. Ironically, just a decade later, with the rise of the iPhone and the Apple App Store, the company would emerge as a major player in the gaming market as smartphone gaming exploded.

Of course, PC gaming existed across these generations and handheld gaming devices and now smartphones are also providing competition to traditional consoles. Arcade games also existed both then and now. Thus, the video game market has always been broader than just home gaming consoles.

Nonetheless, at no time during the turbulent history of this sector have major consoles interoperated. The result has been a constant effort by major console developers to leap-frog the competition with increasingly innovative and powerful consoles and peripherals. Would Microsoft have developed the Kinect motion-sensing device if Nintendo had not previously developed their game-changing Wii motion controllers? It’s impossible to know but it would seem that non-interoperability had something to do with that beneficial development. Microsoft needed a game-changing peripheral of its own to meet the Nintendo challenge since Nintendo was not about to share its innovations with the competition. Meanwhile, Sony has developed its own motion-based “Move” system to compete Microsoft and Nintendo.

This is a highly dynamic marketplace at work. Could policymakers have determined that 3 major non-interoperable home consoles would have produced so much innovation? Would they have judged that to be too much or too little competition?  Would they have been able to foresee or help bring about the disruptive competition from portable gaming devices or smartphones? What sort of interop regulation would have made that happen?

As Palfrey and Gasser suggest in their book, there really “is no single form or optimal amount of interoperability that will suit every circumstance.” The video game case study seems to prove that. Yet, their framework leaves the door open a bit wider for state meddling to determine “optimal interop.” I have little faith that state planners could have given us a more innovative video game marketplace through interop nudging. And I also worry that if the door had been open for regulators at the FCC or elsewhere to influence interoperability decisions, it might have also opened to the door to content regulation since many lawmakers have long had an appetite for video game censorship.

Smartphones

The mobile phone handset and operating system marketplace has undergone continuous change over the past 15 years and is still evolving rapidly. There are some interoperable elements, such as the ability to make connecting calls and send texts and IMs. But other parts of the smartphone ecosystem are not interoperable, such as underlying operating systems or apps and app stores.

In the midst of this mixed system of interoperable and non-interoperable elements, innovation and cut-throat competition have flourished.

When cellular telephone service first started taking off in the mid-1990s, handsets and mobile operating systems were essentially one in the same, and Nokia and Motorola dominated the sector with fairly rudimentary devices. The era of personal digital assistants (PDAs) dawned during this period, but mostly saw a series of overhyped devices, including Apple’s “Newton,” that failed to catch on. In the early 2000s, however, a host of new players and devices entered the market, many of which are still on the scene today, including LG, Sony, Samsung, Siemens, and HTC. Importantly, the sector began splitting into handsets versus operating systems (OS). Leading mobile OS makers have included: Microsoft, Palm, Symbian, BlackBerry (RIM), Apple, and Android (Google).

The sector continues to undergo rapid change and interoperability norms have evolved at the same time. Looking back, it’s hard to know whether increased interoperability would have helped or hurt the state of competition and innovation.

Consider Palm, Blackberry, and Microsoft which all limited interoperability with other systems in various ways. Palm smartphones were wildly popular for a brief time and brought many innovations to the marketplace, for example. Palm underwent many ownership and management changes, however, and rapidly faded from the scene.  After buying Palm in 2010, HP announced it would use its webOS platform in a variety of new products.  That effort failed, however, and HP instead announced it would transition webOS to an open source software development mode.

Similarly, RIM’s BlackBerry was thought to be the dominant smartphone device for a time, but it has recently been decimated. BlackBerry’s rollercoaster ride has left it “trying to avoid the hall of fallen giants” in the words of an early 2012 New York Times headline.  The company once commanded more than half of the American smartphone market but now has under 10 percent, and that number continues to fall.

Microsoft also had a huge lead in licensing its Windows Mobile OS to high-end smartphone handset makers until Apple and Android disrupted its business. It’s hard to believe now, but just a few years ago the idea of Apple or Google being serious contenders in the smartphone business was greeted with suspicion, even scorn by popular handset makers such as Nokia and Motorola. This serves as another classic example of those with a static snapshot mentality disregarding the potential for new entry and technological disruption. Just a few years later, Nokia’s profits and market share have plummeted and a struggling Motorola was purchased by Google. Meanwhile, again, Palm seems dead, BlackBerry is dying, and Microsoft is struggling to win back market share it has lost to Apple and Google in this arena.

It would seem logical to conclude that the ebbs and flows of interoperable and non-interoperable elements of the smartphone world have created a turbulent but vibrantly innovative sector. Has the lack of interoperable operating systems or apps and apps stores hurt smartphone consumers? It’s hard to see how. Mandating interoperability at either level could lead to an OS or app store monopoly, most likely for Apple if such a policy were pursued today.

While Apple has had great success and earned endless kudos for their slick, user-friendly innovations from consumers and tech wonks alike, some critics decry their proprietary business model and more “controlled” user experience. Apple tightly controls almost every level of production of its iPhone smartphone and iPad tablet. Interoperability with competing systems, standards, or technologies is limited in many ways. Is that bad? Some critics think so, suggesting that greater “openness” — presumably in the form of greater device or program interoperability — is needed. But so what? Consumers seem extremely happy with Apple devices. Moreover, well-heeled rivals like Google (Android) and Microsoft continue to innovate at a healthy clip and offer consumers a decidedly different user experience. As with video games consoles, non-interop has had some important dynamic effects and advantages for consumers. It’s hard to know what “optimal interoperability” would even look like in the modern smartphone marketplace and how it would be achieved, but it’s equally hard to believe that consumers would be significantly better off if regulators were trying to achieve it through top-down mandates on such a dynamic, fast-moving market.  [For more on this topic, see my 2011 book chapter, “The Case for Internet Optimism, Part 2 – Saving the Net From Its Supporters,” from the book, The Next Digital Decade.]

Case Study Summary & Analysis

These case studies suggest that defining “optimal interoperability” is a pipe dream. In some cases, consumers demanded a certain amount interoperability and they got it. But it seems equally obvious that they did not demand perfect interoperability in every case. Few consumers are tripping over their own feet in a mad rush to toss out their XBoxs or iPhones just because they are not perfectly interoperable. On the other hand, since the days of the old “walled garden” hell of AOL, CompuServe, Prodigy, and so on, it would seem that information technology markets are growing more “open” in other ways. You can’t completely lock-down a user’s online experience and expect to win their business over the long haul.

Palfrey and Gasser make that point quite nicely in the book:

Increasingly, though, businesses are seeing the merits of strategies based on openness. A growing number of businesses are pursuing models that incorporate interoperability as a core principle. More and more firms, especially in the information business, are shedding their proprietary approaches in favor of interoperability at multiple levels. The goal is not to be charitable to competitors or customers, of course, but to maximize returns over time by building an ecosystem with others that holds greater promise than the go-it-alone approach (p. 149).

Quite right, but let’s not pretend that any mass market information platforms or systems will ever be perfectly “open” or interoperable. There will always be some limitations on how such systems are used or shared. And that’s just fine once you embrace a more flexible theory of evolutionary interoperability.  Ongoing experiments will get us to a better place.

Conclusion: Let Interop Experiments Continue!

So, let me wrap up by restating my alternative theory of optimal interoperability as succinctly as possible: When in doubt, ongoing, bottom-up, dynamic experimentation will almost always yield better answers than arbitrary intervention and top-down planning. Again, that is not to say that all interoperability experiments will leave society better off in the short-term. Some interoperability experiments and resulting market norms or outcomes can create challenging dilemmas for individuals and institutions. There may be short-term spells of “market power,” for example, and some standards may get locked in longer than some of us think makes sense. If, however, we have faith in humans to solve problems with information and technology, then still more experimentation — not state intervention — is the answer. And that is especially true once you accept the fact that those seeking to intervene have very limited knowledge of all the relevant facts needed to even make wise decisions about the future course of technology markets or information systems.

Some will find my alternative theory of optimal interoperability no more satisfying than Palfrey and Gasser’s since they may find the experimental interop framework too inflexible when it comes to state action. Whereas the frustration with Palfrey and Gasser’s theory will likely flow from their failure to define a coherent standard for when intervention is warranted, my approach solves that problem by suggesting we should largely abandon the endeavor and instead let ongoing market experiments solve interop problems over time. For me, we would need to find ourselves in a veritable whole-world-is-about-to-go-to-hell sort of moment before I could go along with state intervention to tip the interop scales in one direction or another. And, generally speaking, this is exactly the sort of thing that antitrust laws are supposed to address after a clear showing of harm to consumer welfare. Stated differently, to the extent any state intervention to address interoperability can be justified, ex post antitrust remedies should almost always trump ex ante regulatory meddling.

This alternative vision of evolutionary, experimental interoperability will be rejected by those who believe the state has the ability to wisely intervene and nudge markets to achieve “optimal interoperability” through some sort of Goldilocks principle that can supposedly get it just right. For those of us who have doubts about the likelihood of such sagacious state action — especially for fast-paced information sectors — the benefits of ongoing marketplace experimentation far outweigh the costs of letting those experiments run their course.

Regardless, we should be thankful that John Palfrey and Urs Gasser have provided us with a book that so perfectly frames what should be a very interesting ongoing debate over these issues. I encourage everyone to pick up a copy of Interop so you can join us in this important discussion.

Additional Reading:

]]> https://techliberation.com/2012/06/11/what-is-%e2%80%9coptimal-interoperability%e2%80%9d-a-review-of-palfrey-gasser%e2%80%99s-%e2%80%9cinterop%e2%80%9d/feed/ 4 41384 Remembering What Regulatory Capture Looked Like: The Airline Experience https://techliberation.com/2011/04/11/remembering-what-regulatory-capture-looked-like-the-airline-experience/ https://techliberation.com/2011/04/11/remembering-what-regulatory-capture-looked-like-the-airline-experience/#respond Tue, 12 Apr 2011 02:51:23 +0000 http://techliberation.com/?p=36203

This week, my colleague Jerry Brito asked me to guest lecture to his George Mason University law school class on regulatory process. He asked me to talk about one of my favorite topics: the sad, sordid history of regulatory capture. Regular readers will recall the compendium I posted here a few months ago [and that I continue to update] of selected passages from books and papers penned by various economists and political scientists who have studied this issue.

Again, it doesn’t make for pretty reading, but the lesson that history teaches is vital: No matter how noble the “public interest” goals of regulatory advocates or their specific proposals, the only thing that really counts is what regulation means in practice.  Regrettably, all too often, regulation is “captured” by various interests and used to their advantage, or at least to the disadvantage of potential competitors, new entrants, and innovation.

While I was gathering some materials for the case study portion of my lecture — which incorporates the history of telecommunications monopolization, broadcast industry regulatory shenanigans, and transportation / airlines fiascos — I figured I had to post a passage from one of my favorite books on regulation of all-time: Thomas K. McCraw’s brilliant Pulitzer Prize-winning 1984 book, Prophets of Regulation. In his chapter on the late great Alfred Kahn, the father of airline deregulation, McCraw recounts the history of the Civil Aeronautics Board (CAB) from its creation in the 1940s up until the time of Kahn’s ascendency to CAB chairman in the Carter Administration (and then the CAB’s eventual deregulation and abolition). Here’s the key passage from that history:

“Clearly, in passing the Civil Aeronautics Act [of 1938], Congress intended to bring stability to airlines. What is not clear is whether the legislature intended to cartelize the industry. Yet this did happen. During the forty years between passage of the act of 1938 and the appointment of [Alfred] Kahn to the CAB chairmanship, the overall effect of board policies tended to freeze the industry more or less in its configuration of 1938. One policy, for example, forbade price competition. Instead the CAB ordinarily required that all carriers flying a certain route charge the same rates for the same class of customer. […] A second policy had to do with the CAB’s stance toward the entry of new companies into the business. Charged by Congress with the duty of ascertaining whether or not ‘the public interest, convenience, and necessity’ mandated that new carriers should receive a certificate to operate, the board often ruled simply that no applicant met these tests. In fact, over the entire history of the CAB, no new trunkline carrier had been permitted to join the sixteen that existed in 1938. And those sixteen, later reduced to ten by a series of mergers, still dominated the industry in the 1970s. All these companies… developed into large companies under the protective wing of the CAB. None wanted deregulation.” (p. 263)

To reiterate: Zero new competitors were allowed. Zero price competition was allowed. And very little service innovation was permitted. It was a comfy little protected cartel from start to finish. It’s no wonder that “none wanted deregulation”!  Folks, if that isn’t the very definition of regulatory capture, I don’t know what is.

This is what makes Fred Kahn’s achievement all the more monumental.  Beyond his obvious mastery of the subject and rigorous documentation of regulatory failure in action, it was Fred’s sheer force of will and amazing spirit that provided the spark to get the deregulation of this mess moving forward. Against all odds — and with the help of some fellow liberal Democrats like Ted Kennedy, Ralph Nader, and Stephen Breyer — Fred did it.

And consumers owe him a huge debt of gratitude for it. Prices plummeted following the CAB’s abolition and countless new industry faces have come and gone since deregulation. Things haven’t been perfect by any stretch of the imagination, but can you imagine how much worse off we would have been absent Fred Kahn’s bold move to break the regulatory capture logjam and “free the skies” for competition?

Something to think about next time someone tells you that regulation is always in consumer’s best interests.

[P.S. – I posted a short obit here late last December remembering Fred Kahn upon his passing. I hope you read it if you haven’t already.  I still wish I could hear Fred speak just one more time. What a joy and inspiration that man was. I always treasured my moments with him. I still have the final email he sent me from early 2010 sitting in my inbox. I just can’t bring myself to delete it for some reason. He had passed along a nice note about a paper I had recently written. I practically cried when I read his note. One of my intellectual heroes had not only read something I penned but he had actually liked it! And he was 92 when he sent it to me.  Blows my mind.]

]]> https://techliberation.com/2011/04/11/remembering-what-regulatory-capture-looked-like-the-airline-experience/feed/ 0 36203 Regulatory Capture: What the Experts Have Found https://techliberation.com/2010/12/19/regulatory-capture-what-the-experts-have-found/ https://techliberation.com/2010/12/19/regulatory-capture-what-the-experts-have-found/#comments Mon, 20 Dec 2010 00:58:22 +0000 http://techliberation.com/?p=33727

[Note: This post is updated regularly as I discover relevant old or new material.]

“Regulatory capture” occurs when special interests co-opt policymakers or political bodies — regulatory agencies, in particular — to further their own ends.  Capture theory is closely related to the “rent-seeking” and “political failure” theories developed by the public choice school of economics.  Another term for regulatory capture is “client politics,” which according to James Q. Wilson, “occurs when most or all of the benefits of a program go to some single, reasonably small interest (and industry, profession, or locality) but most or all of the costs will be borne by a large number of people (for example, all taxpayers).”  (James Q. Wilson, Bureaucracy, 1989, at 76).

While capture theory cannot explain all regulatory policies or developments, it does provide an explanation for the actions of political actors with dismaying regularity.  Because regulatory capture theory conflicts mightily with romanticized notions of “independent” regulatory agencies or “scientific” bureaucracy, it often evokes a visceral reaction and a fair bit of denialism.  (See, for example, the reaction of New Republic’s Jonathan Chait to Will Wilkinson’s recent Economist column about the prevalence of corporatism in our modern political system.)  Yet, countless studies have shown that regulatory capture has been at work in various arenas: transportation and telecommunications; energy and environmental policy; farming and financial services; and many others.

I thought it might be useful to build a compendium of quotes from various economists and political scientists who have studied the regulatory process throughout history and identified regulatory capture or client politics as a major problem.  I would greatly appreciate having others suggest additional quotes and studies to add to this list since I plan to update it frequently and eventually work all of this into a future paper or book. [ Note: I have updated this compendium over a dozen times since the original post, so please check back for updates.]

The following list is chronological and begins, surprisingly, with the thoughts of progressive hero Woodrow Wilson…

Woodrow Wilson, The New Freedom: A Call For the Emancipation of the Generous Energies of a People (1913) at 201-202:

“If the government is to tell big business men how to run their business, then don’t you see that big business men have to get closer to the government even than they are now? Don’t you see that they must capture the government, in order not to be restrained too much by it? Must capture the government? They have already captured it. Are you going to invite those inside to stay? They don’t have to get there. They are there.”

A. C. Pigou, Economics of Welfare, (1920), Ch. 20, Para. #4

“It is not sufficient to contrast the imperfect adjustments of unfettered private enterprise with the best adjustment that economists in their studies can imagine. For we cannot expect that any public authority will attain, or will even whole-heartedly seek, that ideal. Such authorities are liable alike to ignorance, to sectional pressure and to personal corruption by private interest. A loud-voiced part of their constituents, if organised for votes, may easily outweigh the whole.”

Anthony Downs, “An Economic Theory of Political Action in a Democracy,” 65 Journal of Political Economy 2 (1957), 135-150, at 136:

“…even if social welfare could be defined, and methods of maximizing it could be agreed upon, what reason is there to believe that the men who run the government would be motivated to maximize it? To state that “they should do so does not mean that they will.”

Ronald Coase, “The Federal Communications Commission” 2 Journal of Law and Economics (1959), 1-40, at 37. In commenting on the fact that many lawmakers bemoaned “the extent to which pressure is brought to bear on the [FCC] by politicians and businessmen,” Coase said “that this should be happening is hardly surprising.”  He continued on:

“When rights, worth millions of dollars, are awarded to one businessman and denied to others, it is no wonder if some applicants become overanxious and attempt to use whatever influence they have (political and otherwise), particularly as they can never be sure what pressure the other applicants may be exerting.”

Milton Friedman, Capitalism & Freedom (1962) at 140:

“the pressure on the legislature to license an occupation rarely comes from the members of the public . . . On the contrary, the pressure invariably comes from the occupation itself.”

Harold Demsetz, “Why Regulate Utilities?,” 11(1) Journal of Law and Economics (Apr., 1968), at 61.

“…in utility industries, regulation has often been sought because of the inconvenience of competition.”

Richard Posner, “Natural Monopoly and Its Regulation,” 21(3) Stanford Law Review 548 (Feb., 1969):

“Because regulatory commissions are of necessity intimately involved in the affairs of a particular industry, the regulators and their staffs are exposed to strong interest group pressures.  Their susceptibility to pressures that may distort economically sound judgments is enhanced by the tradition of regarding regulatory commissions as ‘arms of the legislature,’ where interest-group pressures naturally play a vitally important role.”

George Stigler, “The Theory of Economic Regulation,” 2(1) Bell Journal of Economics and Management Science, (1971), 3-21 at 3:

“…as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefits.”

George Stigler, “Can Regulatory Agencies Protect the Consumer?” in The Citizen and the State: Essays on Regulation (1975), at 183:

“Regulation and competition are rhetorical friends and deadly enemies: over the doorway of every regulatory agency save two should be carved: ‘Competition Not Admitted.’ The Federal Trade Commission’s doorway should announce , “Competition Admitted in Rear,” and that of the Antitrust Division, ‘Monopoly Only by Appointment.’”

Theodore J. Lowi, The End of Liberalism: The Second Republic of the United States (2nd Ed., 1969, 1979) at 280:

“a considerable proportion of federal regulation, regardless of its own claim to consumer protection, has the systematic effect of constituting and maintaining a sector of the economy or the society. These are the policies of receivership by regulation.”

Alfred Kahn, The Economics of Regulation: Principles and Institutions (1971):

“When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition.” (p. 12) “Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.” (p. 46)

Mark Green and Ralph Nader, “Economic Regulation vs. Competition: Uncle Sam the Monopoly Man,” Yale Law Journal 82, no. 5 (April 1973), 876

“a kind of regular personnel interchange between agency and industry blurs what should be a sharp line between regulator and regulatee, and can compromise independent regulatory judgment. In short, the regulated industries are often in clear control of the regulatory process.”

Richard B. McKenzie and Gordon Tullock, Modern Political Economy: An Introduction to Economics (1978) at 220:

“although regulation is begun with the good intentions of those who promote and pass the laws, somewhere along the line regulators may become pawns of the regulated firms.”

Milton and Rose Friedman, Free to Choose (1980) at 193:

“Every act of intervention establishes positions of power.  How that power will be used and for what purposes depends far more on the people who are in the best position to get control of that power and what their purposes are than on the aims and objectives of the initial sponsors of the intervention.”

Barry M. Mitnick, The Political Economy of Regulation: Creating, Designing, and Removing Regulatory Forms (New York: Columbia University Press, 1980), at 38:

“Much relatively recent research has argued that regulation was often sought by industries for their own protection, rather than being imposed in some ‘public interest.’ Although the distinction is not always made clear in this recent literature, we may add that regulation which is not directly sought at the outset is generally ‘captured’ later on so it behaves with consistency to the industry’s major interests, or at least has been observed to behave in this manner.”

Barry Weingast, “Regulation, Reregulation and Deregulation: The Foundation of Agency-Clientele Relationships,”44 Law and Contemporary Problems, (1981) pp. 147-77, at 151:

“Often, agencies are the vehicle for this endeavor. Agency heads and commission members, anxious to further their careers and goals (including large budgets) as well as completing their own of power and prestige pet projects and policy initiatives, depend upon service to interest their success groups and key committee members for their success.”

George Gilder, Wealth & Poverty (New York: Bantam Books, 1981), pp. 283:

“One reason for government resistance to change is that the process of creative destruction can attack not only an existing industry, but also the regulatory apparatus that subsists on it; and it is much more difficult to retrench a bureaucracy than it is to bankrupt a company. A regulatory apparatus is a parasite that can grow larger than its host industry and become in turn a host itself, with the industry reduced to parasitism, dependent on the subsidies and protections of the very government body that initially sapped its strength.”

Bruce Yandle,”Bootleggers and Baptists — The Education of a Regulatory Economist,” Regulation, Vol. 3, No. 3, (May/June 1983) p. 13:

“what do industry and labor want from the regulators? They want protection from competition, from technological change, and from losses that threaten profits and jobs. A carefully constructed regulation can accomplish all kinds of anticompetitive goals of this sort, while giving the citizenry the impression that the only goal is to serve the public interest.”

Thomas K. McCraw, Prophets of Regulation, (Cambridge, MA: Harvard University Press, 1984), p. 263 [recounting the history of the Civil Aeronautics Board up until the time of Alfred Kahn ascendency to chairman and its eventual deregulation and abolition.]

“Clearly, in passing the Civil Aeronautics Act [of 1938], Congress intended to bring stability to airlines. What is not clear is whether the legislature intended to cartelize the industry. Yet this did happen. During the forty years between passage of the act of 1938 and the appointment of [Alfred] Kahn to the CAB chairmanship, the overall effect of board policies tended to freeze the industry more or less in its configuration of 1938. One policy, for example, forbade price competition. Instead the CAB ordinarily required that all carriers flying a certain route charge the same rates for the same class of customer. […] A second policy had to do with the CAB’s stance toward the entry of new companies into the business. Charged by Congress with the duty of ascertaining whether or not ‘the public interest, convenience, and necessity’ mandated that new carriers should receive a certificate to operate, the board often ruled simply that no applicant met these tests. In fact, over the entire history of the CAB, no new trunkline carrier had been permitted to join the sixteen that existed in 1938. And those sixteen, later reduced to ten by a series of mergers, still dominated the industry in the 1970s. All these companies… developed into large companies under the protective wing of the CAB. None wanted deregulation.”

Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (1987) p. 8:

“The government’s regulatory agencies have created or sustained private monopoly power more often than they have precluded or reduced it.  This result was exactly what  many interested parties desired from government regulation, though they would have been impolitic to have said so in public.”

Jeffrey M. Berry, The Interest Group Society (1989) p. 151:

“The ties between interest groups and [regulatory] agencies can become too close. A persistent criticism by political scientists is that agencies that regulate businesses are overly sympathetic to the industries they are responsible for regulating.  Critics charge that regulators often come from the businesses they regulate and thus naturally see things from an industry point of view.  Even if regulators weren’t previously involved in the industry, they have been seen as eager to please powerful clientele groups rather than have them complain to the White House or to the agency’s overseeing committees in Congress.”

Jonathan Emord, “The Electronic Press and the Industry Capture Movement,” Chapter 11 from: Freedom Technology and the First Amendment (1991), p. 146 (discussing the early history of radio licensing):

“The minutes of the First National Radio Conference in 1922 reveal that even at this early date, industry leader clamored for government limits on the number of licenses issued; they sought protection against entry by new licenses. For its part, the government desired control over the industry’s structure and programming content. Certain members of Congress, joined by [Secretary of Commerce Herbert] Hoover, agreed with broadcast industry leaders that the system of broadcasting in the United States would be brought within the federal government’s control. The classic rent/content control quid pro quo soon developed: in exchange for regulatory controls on industry structure and programming content, industry leaders would be granted restrictions on market entry that they wanted. These restrictions would ensure monopoly rents for licensees and would provide the government with assurance that the broadcast industry would not oppose regulatory controls.”

David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (New Haven, CT: Yale University Press, 1993), p. 13:

“Agency heads are usually not apolitical and, indeed, concentrated interests often prevail more easily in an agency than they can in Congress. Effective participation in agency lawmaking usually requires expensive legal representation as well as close connections to members of Congress who will pressure the agency on one’s behalf. The agency itself is often closely linked with the industry it regulates. Not only large corporations, but also labor unions, cause-based groups, and other cohesive minority interests sometimes can use delegation to triumph over the interests of the larger part of the general public, which lacks the organization, finances, and know-how to participate as effectively in the administrative process.”

Douglass North, “Economic Performance through Time,” 84 American Economic Review 3, (1994), 359-363, at p. 360:

“Institutions are not necessarily or even usually created to be socially efficient; rather they, or at least the formal rules, are created to serve the interests of those with the bargaining power to create new rules.”

P.A. McNutt, The Economics of Public Choice (1996), p. 105-6:

“The more successful the interest group becomes the greater the probability that it will be in a position to impact on the policy making process of successive governments. … Aspiring monopolists will retain lobbyists to assure a favourable outcome and devote resources to the acquisition of the monopoly right.  A government will more than likely grant monopoly privileges to various groups of politically influential people.  Cartels and anti-competitive behaviour will be maintained and politicians will react to the demands of the more vociferous and well organised interest groups.”

Andrew Odlyzko, “Privacy, Economics, and Price Discrimination on the Internet,” July 27, 2003, p. 12:

“It is now widely accepted that the passage of the Interstate Commerce Act of 1887 was not a pure triumph of the populist movement and its allies in the anti-railroad camp. The railway industry largely decided that regulation was in its best interests and acquiesced in and even encouraged government involvement. This is often portrayed as the insidious capture of the regulators by the industry they regulate. There is certainly much evidence to support this view.”

Lawrence Lessig,”Reboot the FCC,” Newsweek, December 23, 2008

“Economic growth requires innovation. Trouble is, Washington is practically designed to resist it. Built into the DNA of the most important agencies created to protect innovation, is an almost irresistible urge to protect the most powerful instead. The FCC is a perfect example. … With so much in its reach, the FCC has become the target of enormous campaigns for influence. Its commissioners are meant to be “expert” and “independent,” but they’ve never really been expert, and are now openly embracing the political role they play. Commissioners issue press releases touting their own personal policies. And lobbyists spend years getting close to members of this junior varsity Congress.”

Thomas Frank, “Obama and Regulatory Capture,” Wall Street Journal, June 24, 2009:

“There are powerful institutions that don’t like being regulated. Regulation sometimes cuts into their profits and interferes with their business. So they have used the political process to sabotage, redirect, defund, undo or hijack the regulatory state since the regulatory state was first invented. The first federal regulatory agency, the Interstate Commerce Commission, was set up to regulate railroad freight rates in the 1880s. Soon thereafter, Richard Olney, a prominent railroad lawyer, came to Washington to serve as Grover Cleveland’s attorney general. Olney’s former boss asked him if he would help kill off the hated ICC. Olney’s reply, handed down at the very dawn of Big Government, should be regarded as an urtext of the regulatory state: ‘The Commission… is, or can be made, of great use to the railroads. It satisfies the popular clamor for a government supervision of the railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things. … The part of wisdom is not to destroy the Commission, but to utilize it.'”

Tim Wu, The Master Switch: The Rise and Fall of Information Empires (2010), p. 308:

“Again and again in the histories I have recounted, the state has shown itself an inferior arbiter of what is good for the information industries. The federal government’s role in radio and television from the 1920s through the 1960s, for instance, was nothing short of a disgrace…. Government’s tendency to protect large market players amounts to an illegitimate complicity … [particularly its] sense of obligation to protect big industries irrespective of their having become uncompetitive.”

David J. Farber & Gerald R. Faulhaber, “Net Neutrality: No One Will Be Satisfied, Everyone Will Complain,” The Atlantic, December 21, 2010:

“When the FCC asserts regulatory jurisdiction over an area of telecommunications, the dynamic of the industry changes. No longer are customer needs and desires at the forefront of firms’ competitive strategies; rather firms take their competitive battles to the FCC, hoping for a favorable ruling that will translate into a marketplace advantage. Customer needs take second place; regulatory “rent-seeking” becomes the rule of the day, and a previously innovative and vibrant industry becomes a creature of government rule-making.”

Holman Jenkins, “Let’s Restart the Green Revolution,” Wall Street Journal, February 2, 2011, (regarding how misguided agricultural & environmental policies are hurting consumers):

“When some hear the word ‘regulation,’ they imagine government rushing to the defense of consumers. In the real world, government serves up regulation to those who ask for it, which usually means organized interests seeking to block a competitive threat. This insight, by the way, originated with the left, with historians who went back and reconstructed how railroads in the U.S. concocted federal regulation to protect themselves from price competition. We should also notice that an astonishingly large part of the world has experienced an astonishing degree of stagnation for an astonishingly long time for exactly such reasons.”

Bruce Schneier, Liars & Outliers: Enabling the Trust that Society Needs to Thrive (New York: John Wiley & Sons, Inc., 2012), p. 204.

“There’s one competing interest that’s unique to enforcing institutions, and that’s the interest of the group the institution is supposed to watch over. If a government agency exists only because of the industry, then it is in its self-preservation interest to keep that industry flourishing. And unless there’s some other career path, pretty much everyone with the expertise necessary to become a regulator will be either a former or future employee of the industry with the obvious implicit and explicit conflicts. As a result, there is a tendency for institutions delegated with regulating a particular industry to start advocating the commercial and special interests of that industry. This is known as regulatory capture, and there are many examples both in the U.S. and in other countries.”

Bruce Owen, “Communication Policy Reform, Interest Groups, and Legislative Capture” (Stanford, CA: Stanford Institute for Economic Policy Research, January 19, 2012), SIEPR Discussion Paper No. 11-006, p. 2. Owen argues that it is the legislative branch, not the regulatory agencies themselves, where regulatory capture takes root:

“It is rather legislative oversight and budget committees and their chairs that are (willingly) captured by special interests in the first instance. One could equally say that legislators capture the special interests, seeking campaign funding The behavior of regulatory agencies simply reflect the preferences of their congressional masters. Regulators generally seek to please their committees, not to defy them.”

Mark Zachary Taylor, The Politics of Innovation: Why Some Countries Are Better Than Others at Science and Technology (Oxford University Press, 2016), p. 213:

“political resistance to technological change can obstruct or warp otherwise ‘good’ S&T [science and technology] policy. Time and again, the losing interest groups created by scientific progress or technological change have been able to convince politicians to block, slow, or alter government support for scientific and technological progress. They support taxes, regulations, subsidies, procurement policies, spending, and so forth that obstruct progress in new S&T, and favor the status quo S&T. The losers and their political representatives have interfered with markets, public institutions and policies, and even the scientific debate itself–whatever they can to protect their interests.”

Additional readings:

]]> https://techliberation.com/2010/12/19/regulatory-capture-what-the-experts-have-found/feed/ 661 33727 Thoughts on Wu, Part 5: What Ultimately Separates the Cyber-Libertarian & Cyber-Collectivist https://techliberation.com/2010/10/29/thoughts-on-wu-part-5-what-ultimately-separates-the-cyber-libertarian-cyber-collectivist/ https://techliberation.com/2010/10/29/thoughts-on-wu-part-5-what-ultimately-separates-the-cyber-libertarian-cyber-collectivist/#comments Fri, 29 Oct 2010 20:33:31 +0000 http://techliberation.com/?p=32722

I want to thank Tim Wu for continuing to engage in a discussion here about his book, The Master Switch, with his various comments to my ongoing rants.  After pouring out about 15,000 words over the past 4 days, I suspect I’m beginning to sound a bit like his cyber-stalker!  I feel a bit bad about this because I really do like Tim a lot and find him to be one of the all-around coolest and most laid-back guys in the Net policy business.  But, as I’ve noted in my ongoing series [see parts 1, 2, 3, & 4], we have profoundly different worldviews when it comes to information history and policy. And some of the recent comments he made to my 3rd post deserve a serious response.

In one of those comments he asks, “The question, then, is how you get, essentially, limited, controlled government in regulatory affairs; how you duplicate, in some sense, the limits imposed on other dangerous gov’t functions like the army. I don’t think this is having things both ways; I think this is trying to learn from what has gone wrong in the past.”  In the other, he says: “The question I’m asking in the end of the book is whether we can do better; try to have rules against the worse forms abuse without a creeping regulation that turns into capture. I suspect you think that’s impossible, but I don’t.”

So, here’s my response (and I’m making it a new, dedicated post here instead of just a comment in an old thread because I feel we are getting to the heart of the difference between cyber-libertarians (like myself) and cyber-collectivists (or whatever Tim would call himself).

To be clear, I don’t think corporations are angels or that there is never a time when a market can’t be naturally subject to a great deal of control by one company or a handful of companies.  The difference between us comes down to two things primarily.

First, as I have already noted in a couple of these essays (especially this one), I believe regulatory capture, mismanagement, or other shenanigans have more to do with creating and / or maintaining “monopoly” or lasting / harmful “market power” than natural market forces.   By definition, a “purely economic laissez-faire approach” does not exist in markets characterized by regulatory capture and bureaucratic mismanagement.  And you won’t ever get less regulatory capture and bureaucratic mismanagement by increasing the scope of government control over a market.

Second, to the extent that any company or set of companies is able to achieve “market power” is a largely natural fashion (think IBM in 70s or Microsoft in late 90s), I believe that markets can and do act to evolve around those situations quite rapidly, even more rapidly when the market is built on code.

I spent time developing these points in detail in this two-part debate [1, 2] with Lawrence Lessig, which I hope Prof. Wu will take the time to read since I went to great pains to clearly delineate the differences that separate our worldviews.  Ultimately, as I said there in response to Prof. Lessig, what really separates the cyber-libertarian and cyber-collectivist schools of thinking comes down to a belief that “market failures” or “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).

Does that mean cyber-libertarians believe everything will be all wine and roses in a truly free marketplace?  Absolutely not.  There will be short term spells of what many of us would regard as excessive market power.  The difference between us comes down to the amount of faith we would place in government actors versus market forces / evolution to better solve that problem.  We cyber-libertarians would obviously have a lot more patience with markets and technological change, and would be willing to wait and see how things work out.  We believe, as I have noted in my previous responses to Wu, that it is during what some regard as a market’s darkest hour when some of the most exciting disruptive technologies and innovation are developing.   We are bullish on what I have called experimental, evolutionary dynamism.  People don’t sit still; they respond to incentives, including short-term spells of “market power.”

Is this blind faith in the market?  I suspect Prof. Wu and others would accuse us of that.  But I would argue it isn’t blind faith but informed fact.  It’s interesting, for example, that one of the “information empires” Wu doesn’t spend much time on in his book is IBM.  Back in the 60s and 70s, (as I have documented here before) IBM was the big, bad dog of the computing world, with significant “market power” in mainframes — the only computers that really counted at the time.  Big Blue’s market power was achieved in a fairly natural way, however.  Importantly, there isn’t much regulatory capture or interference I could point to that helped cause or maintain the power IBM had. So, it’s certainly a better case study than others Wu uses in his book, most of which were subject to early meddling by government that tipped the balance in unnatural directions.

Anyway, back in the 1960’s, some folks at the time feared IBM might “leverage” their significant market power into new fields. As a result, the Department of Justice opened an antitrust case against Big Blue in 1969 that would become a 13-year quagmire, with little to show for all the legal wrangling by the time the case was abandoned in 1982.  Here’s how CNet staff writer Rachel Konrad summarized the fiasco back in 2000:

In January 1969, the government began a sweeping antitrust investigation into IBM’s dominance and attempted to break it into smaller companies that would compete against one another. During the six most critical years of the trial, from 1975 to 1980, the parties called 974 witnesses and read 104,400 pages of transcripts, according to Emerson Pugh’s 1995 book “Building IBM: Shaping an Industry and Its Technology.” The 13-year investigation, which required IBM to retain 200 attorneys at one point, fizzled in the early ’80s as the computing landscape shifted from mainframes to personal computers. The government abandoned the tainted effort entirely in 1982, as clones of the IBM PC eroded Big Blue’s dominance. But the company, still fearful of the watchful eye of the Justice Department, took pains to avoid the appearance of a monopoly long after it relinquished its hold on the market. People who worked for IBM in the ’80s and early ’90s said the company routinely fell victim to “pricing death strategy”–a reluctance to lower prices below cost, even on products that weren’t selling–to avoid what the government would call predatory pricing. By the mid-’80s, the company was in bad shape. The antitrust troubles, combined with ill-timed product failures such as the Future System, pinched revenues. The company began a nearly decade-long financial slide. In retrospect, the antitrust case against IBM seemed laughable.

IBM had become the victim of a classic “disruptive technology” paradigm shift that few could have foreseen in 1969.  As Peter Pitsch noted in his 1996 PFF book The Innovation Age, “In 1981 the Department of Justice was still pressing their case against IBM while market forces were about to lay waste to the company.” Pitsch continued:

IBM certainly did not expect to see PCs erode the market share and profitability of its venerable mainframe computers, but the fall of the old “big iron” machines was rapid and spectacular. The revenue of IBM’s mainframe unit fell from roughly $9 billion in 1990 to an estimated $4.5 billion in 1994… [T]he parties destined to become players in the PC revolution were unknown when the PC was introduced, and the experts’ predictions of a much-ballyhooed computer face-off between IBM and AT&T never materialized. Innovative companies that did not exist at the beginning of the revolution rose rapidly. Few people had ever heard of a small company named Microsoft. Nor had they heard of Intel, Novell, Compaq, Dell, or Netscape.

Pitsch went on to summarize how IBM’s manufacturing capacity was slashed in the years that followed and also notes that, astonishingly, “in the space of five years after 1987, IBM lost two thirds of its market value — more than $70 billion.”  In sum, new marketplace innovation and competition handled the short-term market power concern that antitrust regulators had about Big Blue.  Pitsch goes on to explain what the antitrust regulators missed:

A dominant firm can lose its “King of the Hill” status in two ways. First, if it does not continually improve, it will lose market share and profits to low-cost imitators. For example, the ability of low-end PC manufacturers to make IBM clones fostered robust price competition in the PC market. Second, today’s market leaders must worry that some established and well-financed competitor or possibly an upstart produce a technical breakthrough that will displace them. This situation reflects [the] fact that gains from innovation are so powerful and beneficial to consumers that they outweigh the higher prices dominant firms can charge. Indeed, attempts to eliminate these high profits by regulating prices would almost certainly disserve consumers even if the regulations dampened the incentives for innovation only slightly.

What Pitsch is talking about here is dynamic competition, not the static competition. And what the history of IBM shows is the power of evolutionary dynamism in action.  Markets are a learning experience; a “discovery process” as Austrian economists have taught us. Those of us who believe in dynamic competition and evolutionary dynamism see markets in a constant state of flux and expect that sub-optimal market developments or configurations are exactly the spark that incentivizes new form of market entry, innovation, price competition, and so on. Experimentation and evolution happen if you let them happen.

Others, however – and I suspect this includes Prof. Wu – would argue that’s not good enough. They want action, and they want it now!  Every short-term hiccup deserves a policy response in the name of protecting “the public interest,” however they define it through regulation.  But what about the costs and trade-offs associated with early, preemptive, or prescriptive regulation?  What of the danger of regulation steering markets in unnatural or inefficient directions? The possibility of picking technological winners and losers, or technological lock-in?  The possibility of regulatory capture and the creation of a special interest, lobbying hell inside the Beltway?

Somehow these factors often go out the window for those who subscribe to the more static, snapshot-oriented view of markets and competition that is so prevalent in cyber-collectivist circles.  But the cyber-libertarian can’t let those go.  Those factors lie at the core of the problem, we would argue. Actions have consequences. Regulations have costs. And those costs typically outweigh the benefits of preemptive strikes by the State.

And that, at root, is what separates the cyber-libertarian and cyber-collectivist worldviews when it comes to concerns about “market power” and what to do about it.

[Jump to Part 6 in the series.]

]]> https://techliberation.com/2010/10/29/thoughts-on-wu-part-5-what-ultimately-separates-the-cyber-libertarian-cyber-collectivist/feed/ 15 32722 The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Fees for Public Media https://techliberation.com/2010/03/29/the-wrong-way-to-reinvent-media-part-2-broadcast-spectrum-fees-for-public-media/ https://techliberation.com/2010/03/29/the-wrong-way-to-reinvent-media-part-2-broadcast-spectrum-fees-for-public-media/#comments Tue, 30 Mar 2010 01:13:56 +0000 http://techliberation.com/?p=27606

As mentioned last week, in a new series of essays, PFF scholars will be examining proposals that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. With many traditional media operators struggling, and questions being raised about how journalism in particular will be supported in the future, Washington policymakers are currently considering what role government can and should play in helping media providers reinvent themselves in the face of tumultuous technological change wrought by the Digital Revolution. We will be releasing 6 or 7 essays on this topic leading up to our big filing in the FCC’s “Future of Media” proceeding (deadline is May 7th).  And here’s a podcast Berin Szoka and I did providing an overview of the series.

In the first installment of the series, Berin and I critiqued an old idea that’s suddenly gained new currency: taxing media devices or distribution systems to fund media content. In the second installment, “The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media,” I discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives. Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil.  Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.  Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.

I’ve attached the entire essay down below.

The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media

PFF Progress on Point 17.2 [PDF]

by Adam Thierer*

In an ongoing series of essays, we‘re discussing proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”  Washington policymakers are currently considering what, if any, role government can and should play in assisting media operators, supporting journalism, or expanding public media.  For example, the Federal Communications Commission (FCC) recently kicked off a new “Future of Media” effort with a workshop on “Serving the Public Interest in the Digital Era.” Likewise, the Federal Trade Commission (FTC) has hosted two workshops on “How Will Journalism Survive the Internet Age?”  Meanwhile, the Senate has already held hearings about “the future of journalism,” and Senator Benjamin L. Cardin (D-MD) recently introduced the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat—but also curtail their political editorializing.

Part 1 of this series examined proposals to fund media content via a tax on consumer electronics, broadband service, or cell phone bills.[1] Other essays will address proposals to tax private advertising revenues to support public media; directly subsidize out-of-work journalists; expand postal subsidies; and to prop up or bail out failing media entities.  A wrap-up essay will then focus on some potentially constructive policy reforms that could assist media enterprises without a massive infusion of state support or regulation of the press.

This essay will discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives.[2] Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil.  Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.  Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.

Why the “Public Interest” Regulatory Regime Can’t Continue

There’s always been a bit of mythology surrounding so-called “public interest” regulation of broadcasting in America.[3] Those who advocate expansive regulatory obligations for licensed radio and television operators typically claim they’re directing the content or character of broadcasting toward a nobler end—a sort of noblesse oblige for the Information Age.  At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulatory advocates speak of “the public interest” in reverential and fantastic terms, all the while deftly evading any attempt to define the term.  Indeed, while public interest regulation has been considered the cornerstone of communications and media policy since the 1930s, at no time during these seven decades has the term been adequately defined.[4]

Former FCC Commissioner Glen Robinson has argued that the public interest standard “is vague to the point of vacuousness, providing neither guidance nor constraint on the agency’s action.”[5] And Nobel Prize-winning economist Ronald Coase argued 50 years ago that “The phrase… lacks any definite meaning.  Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.”[6]

And that is still true today.  Simply put, the public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.[7] Nonetheless, the public interest regulatory regime remains with us and continues to apply to licensed broadcast radio and television operators.

Regardless of the rationale used to advance public interest regulation—public spectrum ownership, licensing, scarcity,[8] pervasiveness,[9] or “public enlightenment”—it is hard to explain why we have singled out broadcasters for unique regulatory obligations while operators of other media platforms have been given a free pass.  Such regulatory asymmetry is more difficult to justify today in light of rising competition for many new platforms and players.[10] And it is difficult to believe that Congress or the FCC could concoct a constitutionally-defensible rationale for extending “public interest” regulation to new media platforms.[11] Indeed, efforts to do so for both old (newspapers, print) and new (Internet, video games) media have failed when tested in the courts.  And, practically speaking, even if expansion of the old regime was desirable, it would be exceedingly difficult to do so in light of the sheer scale and volume of new media that would need to be covered.[12]

Spending Money Instead of Imposing Mandates?

The combination of these factors has forced many traditional public interest regulatory advocates to reconsider the wisdom—or at least the practicality—of the old broadcasting regime.  One alternative that has received increasing attention in recent years would see broadcasters largely relieved of their public interest obligations and charged instead an annual fee for their use of the airwaves.  The proceeds from such a spectrum fee or tax would then be used to subsidize a variety of programs or content.  For example:

  • Henry Geller, a former FCC general counsel, first advocated such a spectrum fee scheme as a method of financing more public broadcasting programming.[13]
  • Likewise, Charles Firestone, executive director of the Aspen Institute’s Communications and Society Program, has argued that the scheme could fund “educational programs for children, free political spots on an equal opportunities basis, public service announcements, or other programming that the Government wants.”[14]
  • American Enterprise Institute scholar Norman Ornstein has advocated that the money be spent on a “Public Square” channel to “focus on local and national politics, policy issues, debates, campaigns, and other vital issues.”[15]
  • Elsewhere, along with Paul Taylor, Ornstein has said the money raised from such fees might be spent to ensure greater election coverage or to subsidize political advertising.[16]
  • Leonard Downie, Jr., Vice President at Large of The Washington Post, and Michael Schudson, a Professor at the Columbia University Graduate School of Journalism, have advocated the creation of a “Fund for Local News” that “would make grants for advances in local news reporting and innovative ways to support it.”[17] The Fund would make grants to news organizations through “Local News Fund Councils” and would be financed by “fees paid by radio and television licensees, or proceeds from auctions of telecommunications spectrum, or new fees imposed on Internet service providers.”[18]
  • Most recently, Robert W. McChesney and John Nichols, authors of the new book The Death and Life of American Journalism, have proposed a 7% tax on broadcasters, which they estimate would generate $3-6 billion annually.  They would use it to fund some combination of all of the above items and far more, including welfare for journalists.[19]

A Spectrum Tax as a Regulatory Reparations Policy

We might think of spectrum tax proposals as a sort of reparations policy for the regulatory sins of the past.  That is, broadcast spectrum fees are typically pitched as a way to “repay the public” for use of the spectrum that broadcasters obtained originally at no charge.  As Charles Firestone explains, in theory, the spectrum fee proposal:

provides a specific dollar value to the trade-off that has traditionally marked the public trusteeship theory of broadcast regulation. That is, for the initial grant and/or exclusive use of a valuable frequency, protected against interference or encroachment by governmental enforcement mechanisms, the broadcaster serves the needs and interests of the local audience service area.[20]

But like the “public interest” standard itself, spectrum taxes are also an idea whose time has passed.[21] Broadcast spectrum fees make little sense today, even if the notion might have made some sense two or three decades ago as a method of monetizing public interest obligations.

First, using spectrum fees as a reparations policy today fails to “punish” those who originally got their spectrum free-of-charge.  The vast majority of broadcast spectrum licenses have traded hands in the secondary market for lucrative sums.  In many cases, those television and radio properties have traded hands numerous times.  Thus, the current spectrum-holders who would be taxed are generally not the beneficiaries of any “windfall,” but have instead paid competitive market prices for the spectrum they use that should be roughly commensurate with the economic value of that spectrum (at least for the limited range of uses allowed by the FCC).

Second, although broadcasting remains an important medium, its once-supreme relevance has eroded significantly over the past three decades.  Even Norm Ornstein, a defender of broadcast spectrum fees, has noted that “Over-the-air broadcasting is a dinosaur.  It’s not going to last very long.”[22] Although that might be hyperbole, it’s certainly true that whatever weight the broadcast medium might have had in the past, that is now ancient history.

For most of the past century, broadcasting was a fairly stable industry that did not witness business model-shattering types of changes.  As its very name implies, broadcasting attracted broad audiences.  Consequently, returns were stable, even substantial at times.  Today, however, stability has given way to volatility.  The entire media marketplace is in a state of seemingly constant upheaval.  Long-standing industry players are shedding assets or even disappearing as underdogs rapidly enter the sector and become big dogs overnight.  This has become a textbook example of Schumpeterian “creative destruction” in action.[23]

Consider what this has meant for broadcasters in terms of audience share and advertising revenues.  Start with broadcast television.  The television audience has grown increasingly fragmented since the 1950s.  The top shows on TV during that era ( e.g., “I Love Lucy”) garnered 40-50% of the viewing audience.  By the 1970s, the top broadcast TV shows (e.g., “All in the Family”) were pulling in roughly 30% of the audience.  Today, however, with so many other media options vying for our increasingly scarce attention, the top shows on television (e.g., “American Idol”) are lucky to break 15% and most shows rarely break single digits.

The “problem” is growing competition for eyeballs.  Broadcasters face a growing array of rivals: cable and satellite multi-channel distributors; DVDs and Netflix; VOD and online video; video game platforms; and much more.  According to Nielsen Media Research, the “Big 3” networks of the past (ABC, CBS, NBC), which held 90% of the primetime market in 1980, control only 30% share today.  In terms of total day shares, cable blew past broadcast television at the turn of the century and never looked back.  The advertising situation is equally bleak for television broadcasters.  According to McCann Erickson Worldwide, broadcast television’s overall share of media advertising revenues dipped below 20% back in 1990 and continues to fall steadily, standing at approximately 15% today.

Unsurprisingly, the financial outlook for the broadcast TV sector is bleak.  “Almost all the indicators for local TV are pointing down,” notes the Pew Project for Excellence in Journalism in its annual State of the News Media report.  It continues:

Revenue, too, was in a free fall.  Ad revenue is always lower in a year without federal elections or the Olympics, but the drop in 2009 was especially severe even with the unexpected bounty of political spending on health care legislation.  Revenues were estimated to have fallen by 22% from the year before.  The last two non-election years, by contrast, recorded much smaller declines: 5% in 2005 and 6% in 2007.  Looking ahead, most market analysts project revenues to grow only slightly, in the 3%-to-5% range in 2010, but that is hardly taken as good news given that it is a year that will include both the off-year elections and winter Olympic games.[24]

In light of the recent turmoil, some major network television executives are now thinking about doing what was unthinkable just a decade ago: casting off their local broadcast affiliates and repurposing their content on alternative media platforms ( e.g., cable, satellite, Internet). For example, in early 2009, CBS Corp. President and CEO Les Moonves told an investor conference that moving all CBS network programming to cable and satellite platforms would be “a very interesting proposition.”[25] If television networks start following their audience in the continuing mass exodus to alternative distribution platforms, how would local broadcast affiliates pay for a new federal spectrum fee? Even if that scenario does not develop, local television broadcasters face an uncertain future, and likely declining revenues for some time to come.

The situation for broadcast radio operators is even grimmer.  The competition for our ears has never been more intense with satellite radio, non-commercial radio, iPods and MP3 players, online radio, downloadable music, podcasting, etc. with terrestrial broadcasters for audience share.  As a result, radio operators have seen their audiences dwindle and their revenues nose-dive. According to Arbitron, time spent listening to radio has dropped for every age demographic they’ve measured for the past decade.  And BIA Financial Network notes that while the radio revenue growth rate ran between 7% and 14% during the late 1990s, the industry hasn’t seen growth above 3% since 2002 and in recent years growth has rarely broken 1%.  Furthermore, the Pew Project for Excellence in Journalism reports that:[26]

  • Total radio revenue was down 18% in 2009 from 2008, according to the Radio Advertising Bureau.
  • Local and national radio advertising—the biggest sources of revenue for radio—were both down and projected to continue falling at least through 2011.  There was growth in online advertising, but not enough to make up for the loss of on-air advertising.
  • National and local advertising fell by 20% and 19% respectively in 2009 compared to 2008.  Local advertising has always been radio’s lifeblood.
  • Online advertising revenue saw a 13% increase in 2009, but represented only 3% of industry advertising revenue and was not enough to offset the losses in other categories.
  • Off-air revenues, such as billboards and concert sponsorships, fell 9% in 2009 compared to 2008, to 1.3 billion.  While these revenues currently make up only a small part of radio revenue, the continued decline of national and local advertising may add to their importance.

Again, can struggling radio broadcasters absorb the added burden of a new national spectrum tax in light of their precarious situation? Indeed, it’s numbers like these that usually leads intervention-minded analysts to advocate subsidies, not taxes, for some struggling media entities!

Where Would the Money Go?

Questions also surround the pool of funds that would be amassed through the creation of a broadcast spectrum fee.  Given the declining fortunes of the broadcast industry, it seems unlikely the fee would generate as much revenue as some proponents might imagine. Let’s assume, however, that the spectrum levy netted respectable sums.  How would those funds be used?

America’s recent experience with spectrum auction proceeds suggests that Congress would first look to use a spectrum fee to pay for federal spending priorities or pay off past budget deficits instead of channeling those funds to new “public square” or “public interest” initiatives.  But, for the sake of argument, let’s assume Congress honored a pledge to use the broadcast fee only for its intended purpose.  What exactly counts as a “public square” or “public interest” initiative, and who would be in charge of it?

Some proponents of a spectrum fee seem to long for a world in which everything looks or sounds like a combination of National Public Radio, the Public Broadcasting Service, and cable “public access” channels.  But regardless of the quality of such networks or the programming on them, the viewing and listening public has shown a clear desire for programming of a very different nature.  While critics might lament what they regard as the “low-brow” entertainment or supposedly lower-quality news seen or heard on some commercial networks or stations, there is no denying that citizens tune in to commercial programs in very large numbers.  Whether regulatory advocates care to admit it, supply and demand are at work in America’s media marketplace and citizens vote with their eyes and ears all the time.  Media scholar Ben Compaine, co-author of Who Owns the Media?, focuses on the real issue here, choice:

If large segments of the public choose to watch, read, or listen to content from a relatively small number of media companies, that should not distract policy makers from the key word there: choose. … It may indeed be that at any given moment 80 percent of the audience is viewing or reading or listening to something from the 10 largest media players.  But that does not mean it is the same 80 percent all the time, or that it is cause for concern.[27]

Commenting on efforts to make the modern media landscape look more like PBS or NPR, Compaine notes: “Content might well be different.  But it wouldn’t necessarily be better.… This might work only in a … world of enforced equality, where no democracy of content was allowed, where the voice of the audience was not heard.”[28] He notes that PBS is instructive in this regard since, even in the days when it only had three primary rivals, it could rarely get the attention of more than 2% of the total TV audience.  And as television journalist Jeff Greenfield has noted, “[W]hen you no longer need the skills of a safecracker to find PBS in most markets, you have to realize that the reason people aren’t watching is that they don’t want to.”[29]

Simply put, in a world of unlimited options and freedom of media choice, there’s just no way to force the audience to tune in.[30] Absent truly repressive measures to limit choice or alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice.  “[R]egulation cannot, in a liberal democracy, force viewers to consume media products they do not think they want in the name of the public interest,” argues Ellen P. Goodman of the Rutgers-Camden School of Law.[31]

Our Many “Public Squares”

More importantly, there seems to be little need for a new spectrum fee for “public interest” content or a “public square” channel in light of the explosion of civic-oriented and culturally enriching programming on both traditional and new media platforms.  In essence, we now have many “public square” channels.

For example, the growth of news channels and programs (CNN, Fox News, MSNBC, Current TV, many financial news networks, and more) and international news outlets (BBC America, CNN International, etc.) has been well-documented.  Most notable in this regard is the stunning success of the cable industry’s C-SPAN network and its sister properties.[32] But these cable news channels and programs are also a growing force online as well.  “Like their television programs, the major cable news channels’ websites attracted record viewership in 2008, driven in a large part by the political and economic news of the year,” reports the Pew Project for Excellence in Journalism.[33] Moreover, these cable news sites “have also evolved into true multimedia destinations.  All now feature video archives, RSS feeds and features for accessing the sites on mobile devices.  They all offer live streaming content.”[34] Meanwhile, C-SPAN recently created the C-SPAN Video Library,[35] which archives 23 years worth (1987-on) of fully searchable (and free) video content, including: 161,000 overall hours of programming; 56,600 hours of House & Senate floor activity; and, 20,152 hours of House & Senate committee hearings.[36]

Americans have many other ways of finding important news and civic information online.  The 2008 presidential election serves as a dramatic illustration of how voters have become better informed and how candidates have exciting new ways to connect with them.  The Pew Internet & American Life Project found that “some 74% of Internet users—representing 55% of the entire adult population—went online in 2008 to get involved in the political process or to get news and information about the election.”[37] And President Barack Obama’s unprecedented use of new media tools during 2008 is often credited with helping to propel him into the White House.  Millions of Americans made their views known about various issues on sites such as Obama’s Change.gov website.  Wired reported that “Obama’s online success dwarfed [Senator John McCain’s], and proved key to his winning the presidency.”[38]

Volunteers used Obama’s website to organize a thousand phone-banking events in the last week of the race—and 150,000 other campaign-related events over the course of the campaign.  Supporters created more than 35,000 groups clumped by affinities like geographical proximity and shared pop-cultural interests.  By the end of the campaign, myBarackObama.com chalked up some 1.5 million accounts.  And Obama raised a record-breaking $600 million in contributions from more than three million people, many of whom donated through the web.[39]

Four years earlier, Joe Trippi, former campaign manager of Howard Dean’s 2004 presidential campaign and the author of The Revolution Will Not Be Televised: Democracy, The Internet, and The Overthrow of Everything, had noted that the Dean campaign’s heavy use of new, interactive media and communications technologies was, “a sneak preview of coming attractions—the interplay between new technologies and old institutions.  The end result will be massive communities completely redefining our politics, our commerce, our government, and the entire public fabric our culture.”[40] He concluded: “what we are seeing—at its core—is a political phenomenon, a democratic movement that proceeds from our civic lives and naturally spills over in the music we hear, the clothes we buy, the causes we support.”[41] President Obama’s campaign certainly seems to have been proof of that.

Of course, all this comes in addition to the stunning proliferation of user-generation media such as blogs, discussion boards, listservs, social networking sites, Twitter, You Tube, and so on.  Dan Gillmor, author of We the Media: Grassroots Journalism By the People, For the People, notes just how profound the impact of new media and citizen journalism will be:

Tomorrow’s news reporting and production will be more of a conversation, or a seminar.  The lines will blur between produces and consumers, changing the role of both in ways we’re only beginning to grasp now.  The communications network itself will be a medium for everyone’s voice, not just the few who can afford to buy multimillion-dollar printing presses, launch satellites, or win the government’s permission to squat on the public’s airwaves.[42]

Likewise, in its recent State of the News Media 2010 report, the Pew Project for Excellence in Journalism reported that “Citizen journalism at the local level is expanding rapidly and brimming with innovation.”[43] The report also noted that:

highly promising citizen and alternative sites are emerging daily.  Imaginative news formats, partnerships, formats, technological capabilities and passionate supporters of journalism values offer significant reasons for optimism as journalism continues its mission to inform citizens, make their lives better and nurture democratic processes.[44]

Conclusion

In light of these developments, it’s hard to take seriously the charge that “deliberative democracy” is somehow on the decline in America and that the imposition of a spectrum fee to create a government-controlled “public square channel” or more “public interest” content in general would actually change the constitution of news, culture, or civic engagement in any significant way.  And even if government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it.

Finally, regardless of how spectrum fee proceeds might be spent, the proposal raises fundamental fairness issues for broadcasters.  Indeed, it is doubly insulting for them.  Not only has public broadcasting and non-commercial media been siphoning off more and more market share in recent years, but this proposal would impose a new tax on private broadcasters to fund those competitors (or some other media outlets) at a time when broadcasters are struggling for their very existence.  If Congress imposed a spectrum fee on broadcasters, it would essentially be signing a death warrant for the medium.  It’s hard to see how that’s in “the public interest.”

Related PFF Publications

[1] Adam Thierer & Berin Szoka, The Progress & Freedom Foundation, The Wrong Way to Reinvent Media, Part 1: Taxes on Consumer Electronics, Mobile Phones & Broadband, PFF Progress on Point 17.1, March 2010, www.pff.org/issues-pubs/pops/2010/pop17.1-the_wrong_way_to_reinvent_media.pdf.

[2] This essay is condensed from a chapter that appeared in a new book from Congressional Quarterly Press. See: Resolved, Broadcasters Should be Charged a Spectrum Fee to Finance Programming in the Public Interest, Pro: Norm Ornstein, Con: Adam Thierer, in Richard J. Ellis and Michael Nelson, Debating Reform: Conflicting Perspectives on How to Fix the American Political System (2010) at 53-69.

[3] See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Understanding the Debate over Media Ownership (2005) at 85-104, www.pff.org/issues-pubs/books/050610mediamyths.pdf.

[4] Adam Thierer, The Progress & Freedom Foundation, Why Expansion of the FCC’s Public Interest Regulatory Regime is Unwise, Unneeded, Unconstitutional, and Unenforceable, Testimony Before the Federal Communications Commission Hearing on “Serving the Public Interest in the Digital Era,” March 4, 2010, www.pff.org/issues-pubs/testimony/2010/2010-03-04-Thierer_Remarks_at_FCC_Hearing.pdf.

[5] Glen O. Robinson, The Federal Communications Act: An Essay on Origins and Regulatory Purpose, in A Legislative History of the Communications Act of 1934 3, 14 (Max D. Paglin ed., 1989). Likewise, Lawrence J. White has noted that, “The ‘public interest’ is a vague, ill-defined concept. Under the ‘public interest’ banner the Congress and the FCC have established far too many protectionist, anticompetitive, anti-innovative, inflexible, output-limiting regulatory regimes and have unnecessarily infringed on the First Amendment rights of broadcasters.” See Lawrence J. White, Spectrum for Sale, The Milken Institute Review (June 2001) at 38. See also William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory Law Journal 715, 716 (1989).

[6] Ronald H. Coase, The Federal Communications Commission, 2 J. L. & Econ. 1, 8–9 (1959). Even supporters of broadcast regulation such as Paul Taylor and Norman Ornstein admit that, “neither in the 1927 [Radio] Act nor in the 1934 [Communications] Act, nor subsequently, did Congress define clearly what actions by broadcasters would represent managing their stations in the public interest.” Paul Taylor & Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper No. 4, (2002) at 6.

[7] See Adam Thierer, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 85-104; www.pff.org/issues-pubs/books/050610mediamyths.pdf; Adam Thierer, Is the Public Served by the Public Interest Standard? The Freeman, Vol. 46, No. 9, Sept. 1996, at 618-20, www.thefreemanonline.org/featured/is-the-public-served-by-the-public-interest-standard; William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory Law Journal, 1989, at 715-69.

[8] See John W. Berresford, Federal Communications Commission, The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed, FCC Media Bureau, Staff Research Paper No. 2005-2, (March 2005) www.fcc.gov/ownership/materials/already-released/scarcity030005.pdf. Berresford refers to the scarcity rationale as “outmoded,” “based on fundamental misunderstandings of physics and economics,” and “no longer valid.”

[9] Adam Thierer, Why Regulate Broadcasting : Toward a Consistent First Amendment Standard for the Information Age, 15 CommLaw Conspectus (Summer 2007) at 431-482; http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf.

[10] See Adam Thierer & Grant Eskelsen, The Progress & Freedom Foundation, Media Metrics: The True State of the Modern Media Marketplace, Summer 2008, www.pff.org/mediametrics.

[11] Thierer, supra note 4.

[12] Id. at 7-12.

[13] “By taking some modest fee from commercial broadcasters for their use of the public spectrum in lieu of the public trustee obligation, noncommercial television could be adequately funded to deliver high-quality public service programming.” Henry Geller, Geller to FCC: Scrap the Rules, Try a Spectrum Fee, Current.org, Oct. 30, 2000, www.current.org/why/why0020geller.shtml. Also see Henry Geller, Promoting the Public Interest in the Digital Era, Federal Communications Law Journal, Vol. 55, No. 3, 2003, www.law.indiana.edu/fclj/pubs/v55/no3/Geller.pdf.

[14] Charles M. Firestone, The Aspen Institute, The Spectrum Check Off Alternative to Public Interest Regulation of Broadcasters, www.aspeninstitute.org/policy-work/communications-society/papers-interest/-spectrum-check-alternative-public-interest-regul

[15] See Ornstein supra 2 at 61. Also see Remarks of Norman Ornstein at George Mason University event, The Gore Commission, 10 Years Later: The Public Interest Obligations of Digital TV Broadcasters in Perfect Hindsight, Oct. 3, 2008, www.iep.gmu.edu/documents/Ornstein.doc.

[16] Paul Taylor and Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper #4, June 2002, www.newamerica.net/files/IssueBrief5.FreeAirTime.TaylorOrnstein.pdf.

[17] Leonard Downie, Jr. & Michael Schudson, The Reconstruction of American Journalism, Columbia Journalism Review, Oct. 20, 2009, at 92, available at www.scribd.com/doc/21268382/Reconstruction-of-Journalism.

[18] Id.

[19] See Robert W. McChesney & John Nichols, The Death and Life of American Journalism (2010) at 209-10.

[20] Firestone, supra note 14.

[21] Adam Thierer and Wayne Crews, Cato Institute, Just Don’t Do It: The Digital Opportunities Investment Trust (DO IT) Fund, Cato TechKnowledge, No. 35, May 6, 2002, www.cato.org/tech/tk/020506-tk.html

[22] Quoted in Neil Hickey, TV’s Big Stick: Why the Broadcast Industry Gets What it Wants in Washington, Columbia Journalism Review, September/October 2002, p. 53.

[23] See Thierer & Eskelsen, supra note 7.

[24] Pew Project For Excellence in Journalism, Local TV, The State of the News Media 2010, March 2010, www.stateofthemedia.org/2010/local_tv_summary_essay.php.

[25] Michael Grotticelli, Local TV Stations Face Uncertain Future, Broadcast Engineering, Feb. 23, 2009, http://broadcastengineering.com/news/local-stations-face-uncertain-future-0223.

[26] Pew Project for Excellence in Journalism, Audio – Traditional Broadcast and Broadcast Online, The State of the News Media 2010, March 2010, www.stateofthemedia.org/2010/audio_traditional_broadcast.php.

[27] Ben Compaine, Domination Fantasies, Reason, Jan. 2004, at 33, http://reason.com/archives/2004/01/01/domination-fantasies

[28] Id.

[29] Quoted in Thomas G. Krattenmaker and Lucas A. Powe, Jr., Regulating Broadcast Programming (1994) at 314.

[30] Ellen P. Goodman of the Rutgers-Camden School of Law argues: “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.  And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” Walter Lippmann, Public Opinion (1922), p. 53, 57.

[31] Id. at 374.

[32] Importantly, many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million. See Adam Thierer, The Progress & Freedom Foundation, C-SPAN, Civic-Minded Programming & Public Interest Regulation, PFF Blog, March 2, 2010, http://blog.pff.org/archives/2010/03/c-span_civic-minded_programming_public_interest_re.html

[33] Cable TV, in State of the News Media 2009, www.stateofthemedia.org/2009/narrative_cabletv_digitaltrends.php?media=7&cat=6/#key6

[34] Id.

[35] www.c-spanvideo.org/videoLibrary

[36] See Thierer, supra note 28. See also Brian Stelter, C-Span Puts Full Archives on the Web, New York Times, March 15, 2010,  www.nytimes.com/2010/03/16/arts/television/16cspan.html

[37] Aaron Smith, The Internet’s Role in Campaign 2008, The Pew Internet & American Life, April 15, 2009, www.pewinternet.org/Reports/2009/6–The-Internets-Role-in-Campaign-2008.aspx

[38] Sarah Lai Stirland, Propelled by Internet, Barack Obama Wins Presidency, Wired.com, Nov. 4, 2008,  www.wired.com/threatlevel/2008/11/propelled-by-in

[39] Id.

[40] Joe Trippi, The Revolution Will Not Be Televised: Democracy, The Internet, and The Overthrow of Everything (2004), at 203. [emphasis original].

[41] Id.

[42] Dan Gillmor, We the Media: Grassroots Journalism By the People, For the People (2004), at xiii.

[43] Pew Project For Excellence in Journalism, Introduction, State of the News Media 2010, March 2010,   www.stateofthemedia.org/2010/overview_intro.php

[44] Pew Project For Excellence in Journalism, Community Journalism, State of the News Media 2010, March 2010,  www.stateofthemedia.org/2010/specialreports_community_journalism.php

Wrong Way to Reinvent Media Part 2 – Broadcast Spectrum Taxes [Thierer- PFF] http://d1.scribdassets.com/ScribdViewer.swf

]]> https://techliberation.com/2010/03/29/the-wrong-way-to-reinvent-media-part-2-broadcast-spectrum-fees-for-public-media/feed/ 1 27606 C-SPAN Makes Quarter Century of Video Archives Available Online, Free https://techliberation.com/2010/03/16/c-span-makes-quarter-century-of-video-archives-available-online-free/ https://techliberation.com/2010/03/16/c-span-makes-quarter-century-of-video-archives-available-online-free/#comments Tue, 16 Mar 2010 16:38:13 +0000 http://techliberation.com/?p=27207

Brian Stelter of The New York Times reports today that “C-Span has uploaded virtually every minute of its video archives to the Internet”:

The archives, at C-SpanVideo.org, cover 23 years of history and five presidential administrations and are sure to provide new fodder for pundits and politicians alike. The network will formally announce the completion of the C-Span Video Library on Wednesday.

That’s just incredible. But, as I recently noted in my essay on, “C-SPAN, Civic-Minded Programming & Public Interest Regulation,” what’s more incredible it that this amazing, unprecedented civic resource has been provided to Americans at zero expense for the American taxpayer.  Many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions whatsoever. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million.

So, next time you hear someone whining about how the private sector fails to provide “public interest programming,” ask them why the government didn’t think of C-SPAN first.  And don’t let them forget how, when C-SPAN first got off the ground, many in Congress fought the idea of public access to the inner workings of government. Thank God some folks in the private sector kept the heat on for access, while also keeping the monetary support flowing for the massive investment necessary to keep this unprecedented public resource alive and growing.

Visit C-SPAN’s amazing — and easily searchable — video archive today: www.c-spanvideo.org/videoLibrary

]]> https://techliberation.com/2010/03/16/c-span-makes-quarter-century-of-video-archives-available-online-free/feed/ 5 27207 Would a “Citizenship News Voucher” Get Us More “Broccoli Journalism”? https://techliberation.com/2010/03/10/would-a-citizenship-news-voucher-get-us-more-broccoli-journalism/ https://techliberation.com/2010/03/10/would-a-citizenship-news-voucher-get-us-more-broccoli-journalism/#comments Thu, 11 Mar 2010 03:51:45 +0000 http://techliberation.com/?p=26884

Can we steer people toward hard news — and get them to financially support it — through the use  of “news vouchers” or “public interest vouchers”? That’s the subject of this latest installment in my ongoing series on proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”

As I mentioned here previously, last week I testified at the FCC’s first “Future of Media” workshop on “Serving the Public Interest in the Digital Era.” (@3:29 mark of video).  It was a great pleasure to testify alongside the all-star cast there that day, which included the always-provocative Jeff Jarvis of the CUNY Graduate School of Journalism.  He delivered some very entertaining remarks and vociferously pushed back against many of the ideas that others were suggesting about “saving journalism.” Jeff is a very optimistic guy–far more optimistic than me, in fact–about the prospect that new media and citizen journalism will help fill whatever void is left by the death of many traditional media operators and institutions. He had a lively exchange with Srinandan Kasi, Vice President, General Counsel and Secretary of the Associated Press, that is worth watching (somewhere after the 5-hour mark on the video).

Nonetheless, Jarvis is a enough of a realist to know that it has always been difficult to find resources to fund hard news, which he creatively refers to as “broccoli journalism.”  This is what is keeping the FCC, the FTC (workshop today), and many media worrywarts up at night; the fear that as traditional financing mechanisms falter (advertising, classifieds, subscription revenues, etc) many traditional news-gathering efforts and institutions will disappear. Of course, while it is certainly true we are in the midst of a gut-wrenching media revolution with a great deal of creative destruction taking place, it is equally true that exciting new media business models and opportunities are developing. We shouldn’t over look that, as I argued here and here.

Anyway, a lot of different proposals are being put forth by scholars and policymakers to find new ways to finance news-gathering or “save journalism.” One of the ideas that has been gaining some steam as of late is the idea of crafting a “public interest voucher” or what Robert W. McChesney & John Nichols, authors of the new book The Death and Life of American Journalism, call a “Citizenship News Voucher.”  And McChesney discussed this idea in more detail when he spoke at today’s FTC event on saving journalism. The idea is fairly straightforward: Give every American a voucher (McChesney and Nichols propose $200) to donate money to the non-profit news entity of their choice. The assumption is that this would be an efficient and safe way of channeling money to “broccoli journalism” while avoiding the serious concerns that arise when government officials or agencies are the ones steering the subsidies. McChesney and Nichols go so far as to call the notion “a libertarian’s dream” since “people can support whatever political viewpoint they prefer or do nothing at all.”

Before I critique this notion, let me just reiterate that I am sympathetic to the concern here since I began my life with a journalism degree and I’m a true lover of broccoli journalism. I certainly eat my greens when it comes to news. I’m a National Public Radio supporter and have given $10 per month ($120 per year) to my local NPR affiliate for awhile now. That’s more than I spend on almost any other media product with the exception of my almost two-decade subscription to the Wall Street Journal. And I also subscribe to The Washington Post, National Geographic, and a number of other “broccoli journalism” products. (I gave up my Economist subscription several years ago, which was also quite pricey). I make this investment because I personally love hard news and believe these media entities offer the very best of it.

Nonetheless, the “news voucher” proposal has several problems and is going to fail once implemented anyway.

First, McChesney and Nichols want to sell this scheme as “a libertarian’s dream,” but that’s utter rubbish. I don’t know of any libertarian who dreams of sending more money to the federal government only to win back the right to spend it on “qualifying media entities.” And when they say that “people can support whatever political viewpoint they prefer or do nothing at all,” well, last time I checked people were already free to do whatever they want with their money when it comes to media products! Why do we need to send it to Washington first?

And analogies to educational vouchers don’t work because we long ago decided to treat education as a public good and force everyone to pay for it. Vouchers are only sensible when we absolutely have to force people to spend money on public goods; they help make government spending a tad bit more efficient. While McChesney and Nichols claim in their book that the time has come to treat media as such a public good, most people would not agree, since the private provision of media services has worked quite well for some time—being funded by a mix of advertising and subscription revenues for centuries. They claim that era is over but, as I’ll note below and in a future essay about their book, it is their policies that would end private media by taxing and regulating it to death.

Second, what exactly counts as a “qualifying media entity,” and who makes that call? Can just anybody draw support from this program if they claim to be a “media entity”?  Are we going to let people redeem their vouchers on The National Inquirer or People magazine?  How about The Onion?  Or how about blogs like this one! “This is a risk we are more than willing to take,” McChesney & Nichols say since they are “operating on a gut instinct that people will use their vouchers to fund serious media while reaching into their pockets to pay for copies of The National Inquirer at the supermarket checkout.” (p. 205) Of course, it’s always easier to take such risks when you are playing with other people’s money! But they are fools to believe this idea is going to change the face of journalism in any serious way. The majority of people will spend their vouchers on whatever media outlets and content they are currently consuming, which probably isn’t want McChesney & Nichols (or policymakers) would prefer.

This raises a third concern: How long will it be before government starts attaching more strings to the vouchers? To borrow a headline from The Wall Street Journal from earlier this week, how long will it be before the “Economic Policy ‘Nudge’ Gives Way to a Shove?” This “Nudge” notion is popular in DC these days with the Obama crew thanks to Cass Sunstein’s book of the same name (w/Richard Thaler). But, as I’ve said here before, such “nudging” is rife with elitism since some policymakers imagine they can steer the public’s tastes or behavior in more desirable directions through law. The problem is, some people just don’t much like being nudged by officials from afar and they’ll often take steps to evade it. In this context, there is simply no way to get people to consume what you want it in an age of abundance. I talked about this problem at length in my testimony to the FCC last week. You just can’t make people watch, listen, or read if they don’t want to. As Ellen P. Goodman of the Rutgers-Camden School of Law has noted: “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” Moreover, she rightly argues, “regulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest.” Amen, sister.

So, even though, in theory, the news voucher idea lets consumers figure out how to steer the funds, I sincerely doubt that most of those funds will go toward “broccoli journalism” and other civic-minded content. And once people start  redirecting taxpayer dollars to all sorts of silly stuff that the elites and policymakers don’t like, that’s when the nudge will become a shove and more interventions will follow in the form of “voucher guidance and compliance” hearings, rules, etc.  In essence, you can file this all under the “if you build it they will come” theory of public policy. But, in this case, it’s all wishful thinking because you simply can’t force people to spend money (or pay attention) to things they don’t want to.

There’s final problematic caveat to the McChesney-Nichols variant of the news voucher idea: They would disallow any copyright protection or advertising support for an entity who receives voucher funds. That’s an effort by the authors to steer even more media activity away from the commercial sphere and toward “the public option” for the press. Let’s not forget that McChesney has argued (during this interview the Canadian-based “Socialist Project”) that “the ultimate goal is to get rid of the media capitalists,” and that, “unless you make significant changes in the media, it will be vastly more difficult to have a revolution.”  So, it’s important to keep his true intentions in mind when he starts claiming to have found “a libertarian’s dream” of a solution to what ails America’s media sector. [For more details on his intentions, see my essay from last year, “Free Press, Robert McChesney & the “Struggle” for Media.”]

In the meantime, this particular libertarian would like to keep his money and spend it on media as he sees fit, thank you very much!

]]> https://techliberation.com/2010/03/10/would-a-citizenship-news-voucher-get-us-more-broccoli-journalism/feed/ 5 26884 We’re from Government and We’re Here to Help (Save Journalism) https://techliberation.com/2010/03/06/were-from-government-and-were-here-to-help-save-journalism/ https://techliberation.com/2010/03/06/were-from-government-and-were-here-to-help-save-journalism/#comments Sat, 06 Mar 2010 20:33:18 +0000 http://techliberation.com/?p=26848

“We’re from government and we’re here to help save journalism.”

That seems to be the hot new meme in media policy circles these days. Last week, it was the Federal Communications Commission (FCC) kicking off their “Future of Media” effort with a workshop on “Serving the Public Interest in the Digital Era.” This week, it’s the Federal Trade Commission’s (FTC) turn as they host the second in their series of workshops on How Will Journalism Survive the Internet Age? Meanwhile, the Senate has already held hearings about “the future of journalism,” and Senator Benjamin L. Cardin (D-MD) recently introduced the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat.

I have no doubt that many of the public policymakers behind these efforts have the best of intentions and really are concerned about what many believe to be a crisis in the field of journalism. But here are my three primary concerns with Washington’s sudden interest in “saving journalism”:

  1. Policymakers are largely ignoring the role they played in created the current mess, and they won’t likely be willing to undo the damage. I’m speaking mostly of the myriad ownership restrictions and assorted other “public interest” regulations that have strangled many traditional media operators over the years and limited their ability to respond to marketplace changes. I documented these rules and their anti-innovative impacts in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership. I fear that they now won’t be willing to loosen those chains that continue to bind the media sector. Moreover, it may already be too late for some of those players.
  2. Many public officials are largely focused on the problems associated with change and are either ignoring–or, through their interventions could thwart–the opportunities associated with change. No doubt, many media operators are struggling. But it is equally true that exciting new media business models and opportunities are developing. As I pointed out in my recent Newseum debate, while we are in a gut-wrenching evolution with a great deal of creative destruction taking place, we should be careful to not to head off potentially advantageous marketplace developments, if even some are highly disruptive.
  3. Increased “assistance” from Washington will likely come with strings attached and raise troubling First Amendment implications. Sen. Cardin’s bill, for example, serves as a good example of what makes me so nervous about Washington’s growing interest in “saving journalism.”  As a condition of any any media entity receiving non-profit tax status, the bill would disallow political endorsements on newspaper editorial pages–which, like campaign finance restrictions, would be a boon for incumbents. That should serve as fair warning to journalists about the sort of strings lawmakers will attach to press-welfare efforts going forward. What else might subsidized media entities have to put up with? Free campaign ads for politicians? Fairness Doctrine or mandatory right of reply for printed editorials? Censorship for “negative” political satire or comics? Moreover, how do we define a “media entity” or “journalist” in terms of how is eligible for support?  Taken together, these considerations raise some rather profound First Amendment questions.

Stay tuned because this debate is just getting started. I suspect that policymakers will significantly step up their interest in the issue as more traditional media entities begin failing. What will be interesting is the extent to which some policymakers begin to embrace the “media reformista” agenda of greater public control that some fringe groups like Free Press favor. I’ve documented their radical agenda here before in my essays:

And I’m currently finishing up the new book by Robert McChesney & John Nichols, The Death and Life of American Journalism, which is a blueprint for how to convert media into wards of the State.  As part of their effort to create a massive “public works” program for the press, they advocate that public subsidies for media be funded by everything from a 5% tax on consumer electronics to a 3% tax on monthly ISP & cell phone bills to taxes on commercial advertising.  Truly frightening stuff. Anyway, I’ll have a complete review done shortly.

Further reading:

]]> https://techliberation.com/2010/03/06/were-from-government-and-were-here-to-help-save-journalism/feed/ 11 26848 testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era” https://techliberation.com/2010/03/03/testimony-at-fccs-hearing-on-%e2%80%9cserving-the-public-interest-in-the-digital-era%e2%80%9d/ https://techliberation.com/2010/03/03/testimony-at-fccs-hearing-on-%e2%80%9cserving-the-public-interest-in-the-digital-era%e2%80%9d/#comments Thu, 04 Mar 2010 03:33:52 +0000 http://techliberation.com/?p=26697

Today I am testifying at an FCC hearing on “Serving the Public Interest in the Digital Era.” [Speaker lineup here.] The purpose of the workshop is to explore:

  • A brief history and overview of policies involving “public interest” requirements for commercial media and telecommunications companies;
  • The state of local commercial broadcast TV and radio news and information; and
  • The impact of media convergence and the emergence of the Internet, mobile technologies, and digital media on FCC media policy.

In my remarks, I focused on “Why Expansion of the FCC’s Public Interest Regulatory Regime is Unwise, Unneeded, Unconstitutional, and Unenforceable.” Down below I have attached my written remarks.

Why Expansion of the FCC’s Public Interest Regulatory Regime is Unwise, Unneeded, Unconstitutional, and Unenforceable

by Adam Thierer

I.       Introduction

Thank you for inviting me here today for this FCC workshop on “Serving the Public Interest in the Digital Era.” I have been asked to discuss “the impact of media convergence and the emergence of the Internet, mobile technologies, and digital media on FCC media policy”[1] on the FCC’s “public interest” regulatory regime.

In my remarks, I will outline both the normative and practical cases against the expansion of “public interest” notions and corresponding regulatory requirements. I will argue that such considerations counsel that the Commission exercise extreme caution as it looks to revise regulations that govern America’s media marketplace.

II.     The Normative Case against Expansion of Public Interest Regulation

A.     The Inherent Ambiguity of “the Public Interest” Notion

The normative case against expansion of public interest regulation begins with the fact that this notion has always been haunted by an inherent ambiguity that is fundamentally at odds with America’s First Amendment tradition. Indeed, while public interest regulation has been considered the cornerstone of communications and media policy since the 1930s, at no time during these seven decades has the term been adequately defined.

Former FCC Commissioner Glen Robinson has argued that the public interest standard “is vague to the point of vacuousness, providing neither guidance nor constraint on the agency’s action.”[2] And Nobel Prize-winning economist Ronald Coase argued 50 years ago that “The phrase… lacks any definite meaning. Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.”[3]

And that is still true today. Simply put, the public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.

B.      None Dare Call it Elitism

Still, many policymakers continue to prop up public interest notions and regulations in the belief that they are directing the content or character of media toward a nobler end. At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulators speak of the public interest in reverential and fantastic terms, again, all the while deftly evading any attempt to define the term.

But the fundamental problem here is that public interest proponents assume that their values or objectives—which, in their opinion, are consistent with the needs and desires of the public—should ultimately triumph within the public policy arena. Simply stated, what motivates much public interest regulation is a simple desire by some here in Washington to tell the American people what’s best for them.

Worse yet, how the term has been interpreted and applied by the FCC has often depended on the ideological disposition of whatever party is in charge at the time.  As Ford Rowan, author of Broadcast Fairness, once noted: “Many liberals want regulation to make broadcasting do wonderful things; many conservatives want regulation to restrain broadcasting from doing terrible things.”[4] Consequently, during periods of liberal rule, the “public interest” has been seen as a method of politically engineering more “educational” and “community-based” programming. By contrast, in the hands of conservative appointees, the public interest has been seen as an instrument to curb “indecent” speech.

Few have dared to call this elitism—but I will.[5] What else should we call it when a five unelected officials here at the FCC sit in judgment of acceptable media content and dictate media marketplace outcomes? The viewing and listening public, however, has a broad array of interests and desires that cannot be easily gauged by this agency. As media scholar Benjamin Compaine has rightly noted, “[i]n democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’”[6]

Perhaps what some are afraid to ask is this: Does the public really want to watch what some policymakers and regulatory advocates consider to be more “culturally enriching” or “civic-minded” content, or would they rather tune into something else? Given the choice, many viewers will opt for what many public interest regulatory supporters would consider to be “low-brow” offerings over the programming that policymakers feel the masses should be consuming. Public interest supporters may bemoan the lack of civic spirit, or claim that this represents the end of our culture as we know it, but these are voluntary choices made by the citizenry that must be respected by government officials. In particular, government should not censor Americans’ choice of content through open-ended public interest regulatory rationales.[7]

C.      There’s More “Public Internet” Content Than Ever Before, But You Can’t Force Citizens to Consume It

Generally speaking, however, the media marketplace traditionally has reflected what the public on average really wants to see and hear. And that’s even truer today. Viewers and listeners are being offered a stunning array of diverse media inputs and options. Just because the American people sometimes make choices that policymakers find distasteful, it does not mean that citizens don’t have good choices at their disposal.

For example, we are blessed to be living in the golden age of children’s video programming.[8] As I have documented in my ongoing PFF special report on Parental Controls & Online Child Protection [9] and in other filings to the Commission,[10] there’s never been more educational and enriching kids programming available to families than there is today. Similarly, consider the stunning diversity of programming available thanks to the 500-plus channel universe of multichannel video options now at our disposal.[11] Almost every conceivable interest or hobby is now covered by a video network.[12]

And is there really any shortage political programming or “civic-minded” content from which to choose?  C-SPAN alone covers more activity in the course of a week than most of us probably came into contact with in our entire lives just 30 years ago. Consider these data points.[13] In the 2009 calendar year, C-SPAN provided the following amount of first run programming across their three channels:

  • 8,438 overall hours of programming;
  • 2,709 hours of House & Senate floor activity; and,
  • 1,222 hours of House & Senate committee hearings.

Moreover, C-SPAN recently created the C-SPAN Video Library,[14] which archives 23 years worth (1987-on) of fully searchable (and free) video content, including:

  • 161,000 overall hours of programming;
  • 56,600 hours of House & Senate floor activity; and,
  • 20,152 of House & Senate committee hearings.

Importantly, many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million.

And let’s not forget about what the Internet has made available to us. It has given us unprecedented access to public affairs information—local, state, national, and international.

But, again, you can’t make people watch, listen, or read if they don’t want to. “Today, the scarce resource is attention, not programming,” notes Ellen P. Goodman of the Rutgers-Camden School of Law. “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.”[15]

Absent truly repressive measures to limit choice or alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice. “[R]egulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest,” argues Goodman.[16] (This dilemma creates additional practical problems for proposals to expand public interest regulation, which will be discussed in Sec. II below.)

D.     Returning to First Principles

Yet now we face the prospect of this arbitrary regulatory regime being expanding to cover more platforms and speech.[17] But, instead of first looking to expand regulation, we should use this as an opportunity to return to first principles—especially in light of the dubious constitutionality of the FCC’s existing public interest regulatory regime.[18]

We should begin by recalling that, from the time of the republic’s founding, public interest regulation has never been applied to newspapers, magazines, pamphlets, or books. Instead, the First Amendment has reigned supreme.[19] And when policymakers attempted to apply such public interest obligations to print media, those edicts were ruled flatly unconstitutional.[20]

The characteristics of broadcast radio and television, however, were considered sufficiently unique to justify a different regulatory approach and second-class citizenship status in terms of First Amendment rights.  Scarcity, of course, was the lynchpin of the regulatory regime imposed on the broadcast industry, and it yielded calls for public interest regulation of the medium. But whatever one thinks of the scarcity rationale for differential treatment of broadcasting—and, personally, I don’t believe it was ever a legitimate excuse for diminished First Amendment treatment—that era of scarcity is clearly over.[21] We now live in an age of information abundance—even information overload.[22] We have more media options and diversity at our disposal today than ever before, and generally at falling prices.[23] And yet, at the Commission, it continues to be business as usual.

The courts, however, have acknowledged that the situation on the ground has changed, and changed radically. When policymakers have sought to expand broadcast-like regulatory requirements to newer media platforms in recent years, the Courts have pushed back. That has particularly been the case for the Internet[24] and video game content.[25] The jurisprudential Twilight Zone will live in today—in which we classify services and determine free speech rights based on technical characteristics or functional features—makes no sense and can’t last for much longer for reasons discussed next.[26]

III.  The Practical Case against Expansion of Public Interest Regulation

Let’s look beyond these normative concerns and instead focus on the practical considerations associated with any effort to expand the horizons of public interest regulation.

A.     The Scale & Volume Problem

As the title of this particular panel quite rightly noted, we now live in an age of media and technological convergence.[27] All bits are coming together.[28] Because convergence is now upon us, media can be distributed instantaneously across numerous platforms. Thus, a regulatory attack on one type of media outlet or technology might necessitate an attack on many other media outlets if it has any hope of being effective.

But how will this work? If we are to achieve regulatory parity in an age of convergence, we must come to grips with the sheer scale of the task at hand. The modern mediasphere is massive—and growing rapidly. Consider some statistics about online media activity:

  • 1.73 billion Internet users worldwide as of Sept 2009; an 18% increase from the previous year.[29]
  • 81.8 million .COM domain names at the end of 2009; 12.3 million .NET names & 7.8 million .ORG names.[30]
  • 234 million websites as of Dec 2009; 47 million were added in 2009.[31] In 2006, Internet users in the United States viewed an average of 120.5 Web pages each day.[32]
  • There are roughly 26 million blogs on the Internet[33] and even back in 2007, there were over 1.5 million new blog posts every day (17 posts per second).[34]
  • In December 2009, 86% of the total U.S. online population viewed video content.[35] The average online viewer watched 187 videos (up 95 percent from the previous year), while the average video length viewed grew from 3.2 to 4.1 minutes.[36] The majority of online video viewing (52%) occurred at video sites ranked outside of the top 25, suggesting the increased fragmentation of online video and the emergence of sites in the “long tail.”[37]
  • YouTube reports that 20 hours of video are uploaded to the site every minute,[38] and 1 billion videos are served up daily by YouTube, or 12.2 billion videos viewed per month.[39]
  • For video hosting site Hulu, as of Nov 2009, 924 million videos were viewed per month in the U.S.[40]
  • Developers have created over 140,000 apps for the Apple iPhone and iPod and iPad and made them available in the Apple App Store.[41] Customers in 77 countries can choose apps in 20 categories, and users have downloaded over three billion apps since its inception in July 2008.[42] Apple’s iTunes Store has a catalog of 12 million songs, over 55,000 TV episodes, and 8,500 movies. It has sold more than 10 billion songs.[43]
  • Social networking giant Facebook reports that each month, its 400+ million users upload more than 3 billion photos, and create over 3.5 million events. More than 3 billion pieces of content (web links, news stories, blog posts, notes, photos, etc.) are shared each week. There are also more than 3 million active Pages on the site.[44]
  • There are 10 million edits made to Wikipedia every seven weeks.[45]
  • Twitter users send out 50 million tweets per day, an average of 600 tweets per second.[46]
  • 4 billion photos hosted by Flickr as of Oct 2009.[47]

Even in “traditional” media sectors, the scale and volume problem is formidable: [48]

  • 565 cable TV channels[49]
  • over 2,200 broadcast TV stations [50]
  • over 13,000 broadcast radio stations [51]
  • over 20,000 magazines [52]
  • over 276,000 books [53]

In sum, the mediasphere is bigger than ever and it begs the question how the FCC plans to wrap its public interest regulatory tentacles around all of it if analog era regulations are to cover digital era content, platforms, and technologies.

B.      The Definitional Problem: Who’s Covered (or Subsidized?)

Another intractable problem associated with expansion of public interest regulation will arise once policymakers are forced to define who or what counts as a “media entity” or a “journalist” in today’s wide-open media world. And this will be a problem whether public officials are regulating media entities or subsidizing them.

For example, will bloggers be regulated or, conversely, eligible for public media subsidies? Will foreign-owned news entities be regulated or be eligible for support?  What’s the public interest standard that applies to MySpace or Facebook? Are YouTube, Hulu, and Vimeo, and Joost “just like TV stations” and, therefore, regulated like one? There may well be rational ways to make cuts along these lines, but they could raise constitutional questions. Government preferences among speakers or classes of speakers are prior restraints, constitutional sins of the highest order.

Further, it would be just these sorts of choices that would open the door to the most abusive government intrusion into the production of journalism.  It is not hard to imagine that government regulators, even with the best of intentions and acting in the utmost good faith, would, perhaps unconsciously, favor speakers and classes of speakers to whom they felt the closest affinity.  And, because Administrations come and go, as do members of Congress, no particular class of speakers would ever be truly safe — no story would be reported without at least a glance by the author over her shoulder to make sure that she had not offended the “wrong” person.  This is not an approach consistent with a free press reporting to a free people.

C.      Expanded Regulation Will Kneecap Media Providers As They Are Struggling to Reinvent Themselves

Meanwhile, this inquiry comes at a time when many traditional media providers are fighting for their very existence. Audiences are fragmenting. Advertisers are fleeing. Revenues are shrinking.  And yet, again, here we are toying with the idea of expanding regulatory burdens while the media marketplace is experiencing unprecedented upheaval and gut-wrenching creative destruction.

And if the FCC’s intends to simply continue to impose public interest regulations on the narrow set of media operations they currently control—broadcast television and radio—that’s tantamount to the FCC signing a death warrant for those media operators. But, as noted below, any proposal to “spread the pain around” by burdening everyone equally is a recipe for even greater economic catastrophe, and it wouldn’t likely pass constitutional muster in the courts anyway.

This all begs the question: Do traditional media providers really have too much power, or do they actually have too little.  Indeed, the viability of traditional media operators is increasingly in doubt since they lack pricing power and the ability to control when, where, and how their content is delivered and consumed. They no longer have protected geographic markets or “protectable scarcity.” Meanwhile, advertising—the traditional lifeblood of the media sector[54]—is increasingly being subjected to new scrutiny and regulation here in Washington.[55] And copyright infringement has also made monetization more challenging and placed strains on many operators.  Regardless, with traditional media operators in such serious trouble, now certainly isn’t the time to impose new rules and red tape that could hamstring their ability to respond to new competitive pressures.

Perhaps the most destructive set of ideas floating around today are those that would essentially burn the village in order to save it. For example, some regulatory advocates have toyed with ideas like “public interest vouchers,”[56] broadcast spectrum taxes,[57] expanded ownership restrictions or forced media divestiture plans,[58] or even taxes on commercial advertising,[59] consumer electronics, cell phone providers, and ISPs.[60] In each case, the cure would be worse than the disease that ails the body. We’re not going to get a more diverse media marketplace in this country by forcing private media providers to fund their non-commercial or public-subsidized competitors.  While some of these proposals are well-intentioned and aimed at addressing perceived deficiencies in the market for “public interest” content, there are better ways for policymakers to achieve that goal.

IV.  Using Existing Public Platforms to Promote Preferred Content Through a “Public Interest Portal”

Most obviously, support for the Corporation for Public Broadcasting (CPB) could be expanded. However, that should be achieved without skimming funds off of commercial advertising budgets or through “fees” on private media operators. Enhanced support for CPB and non-commercial media in general should be derived from general treasury funds, not special levies on commercial media operators.

If the FCC believes something more must be done to create—or drive citizens to—“public interest” or civic-minded content, the best approach would be for the agency to work with other federal and state entities and leverage existing government platforms and resources to accomplish this task.

Consider how federal agencies are already doing so in an effort to promote Internet safety and security. A dozen federal agencies and several private child safety organizations have collaborated[61] to create the OnGuardOnline.gov website, which “provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information.”[62] Among other things, the effort includes a “Stop-Think-Click” promotion that recommends “Seven Practices for Safer Computing.” In October 2009, OnGuardOnline also released a new online safety resource called Net Cetera: Chatting with Kids about Being Online . [63] This 54-page document, which is being widely distributed by the government (both online and offline), is an outstanding resource for parents and kids.

In a similar vein, the FCC could work with several other agencies to create a massive “Public Interest Portal” that aggregates and promotes the sort of the public interest programming and content that policymakers hope will gain more widespread distribution—whether produced by traditional programmers, niche professionals, or amateurs. The collaborating agencies might even be able to create a downloadable widget or toolbar for use on any web browser that could enable citizens to instantaneously access a wide variety of public interest content. Many organizations already offer similar portals for children’s content. (Examples include: KidZui,[64] Glubble,[65] Browser Buddy,[66] KidRocket,[67] KIDO’Z,[68] Noodle Net,[69] Hoopah Kidview Computer Explorer[70] and Peanut Butter PC.[71]) There’s no reason that model couldn’t be significantly expanded by the FCC and other government agencies if they put their resources behind it.

The success of this approach, of course, is by no means guaranteed since, as noted above, it is impossible to force a free people to consume content they do not demand.  Nonetheless, it would allow the government to at least accomplish the objective it has long sought to achieve through affirmative regulation of commercial media providers: increasing the availability and practical accessibility of public interest programming. Moreover, this approach would have the advantage of not raising serious constitutional objections or burdening commercial media operators with onerous new regulatory requirements or fees. If, however, policymakers reject this approach on the grounds that citizens would still “tune in” to other types of programming first, it would confirm the fundamental elitism that some of us have long suspected truly animates most “public interest” regulatory efforts.

V.    Conclusion: Regulate Up or Deregulate Down?

In light of the considerations addressed above, we must ask: To achieve regulatory parity, should we regulate up or deregulate down? To the extent that technological convergence leads to policy convergence, it should be done in the latter direction. In a world in which scarcity has been overthrown by abundance, we should strike the balance in favor of greater media freedom and stronger First Amendment protections for all speech however it is delivered. [72]

It is vital that the outmoded public interest rationales undergirding the broadcast regulatory regime be discarded, not only to spare broadcasters from more unfair, asymmetrical regulatory restrictions, but also to ensure that this contorted vision of the First Amendment is not extended to other media platforms.[73] While some policymakers and media critics propose extending the broadcast regulatory regime to cover new media outlets and digital technologies,[74] if America is to have a consistent First Amendment in the Information Age, such efforts should be halted and the public interest regulatory regime should be relegated to the ash heap of history.

There are better ways for the Commission and Congress to accomplish “public interest” goals other than by regulating as if it’s still 1934.

[1]       Federal Communications Commission, The Future of Media & Information Needs of Communities: Serving the Public Interest in the Digital Era, Media Advisory, Feb. 12, 2010, http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-296254A1.pdf

[2] Glen O. Robinson, The Federal Communications Act: An Essay on Origins and Regulatory Purpose, A Legislative History of the Communications Act of 1934 3, 14 (Max D. Paglin ed., 1989). Likewise, Lawrence J. White has noted that, “The ‘public interest’ is a vague, ill-defined concept. Under the ‘public interest’ banner the Congress and the FCC have established far too many protectionist, anticompetitive, anti-innovative, inflexible, output-limiting regulatory regimes and have unnecessarily infringed on the First Amendment rights of broadcasters.” See Lawrence J. White, Spectrum for Sale, The Milken Inst. Rev. (June 2001) at 38. See also William T. Mayton, The Illegitimacy of the Public Interest Standard at the FCC, 38 Emory L. J. 715, 716 (1989).

[3] Ronald H. Coase, The Federal Communications Commission, 2 J. L. & Econ. 1, 8–9 (1959). Even supporters of broadcast regulation such as Paul Taylor and Norman Ornstein admit that, “neither in the 1927 [Radio] Act nor in the 1934 [Communications] Act, nor subsequently, did Congress define clearly what actions by broadcasters would represent managing their stations in the public interest.” Paul Taylor & Norman Ornstein, New America Foundation, A Broadcast Spectrum Fee for Campaign Finance Reform, Spectrum Series Working Paper No. 4, (2002) at 6.

[4] Ford Rowan, Broadcast Fairness (Longham, 1984), p. 39.

[5] See Adam Thierer & Berin Szoka, The Progress & Freedom Foundation, What Unites Advocates of Speech Controls & Privacy Regulation?, Progress on Point 16.19, Aug. 11, 2009, www.pff.org/issues-pubs/pops/2009/pop16.19-unites-speech-and-privacy-reg-advocates.pdf. On occasion, even public interest regulatory advocates have admitted this. “One of the dangers in evaluating the media in a public interest framework is that it can easily take on an elitist tone.” David Croteau and William Hoynes, The Business of Media: Corporate Media and the Public Interest (2001) at 151.

[6] Benjamin M. Compaine, The Myths of Encroaching Global Media Ownership, Open Democracy.net, Nov. 6, 2001, at 5, www.opendemocracy.net/content/articles/PDF/87.pdf

[7] See Harry Kalven, Jr., Broadcasting, Public Policy and the First Amendment, J. L. & Econ. 15, 19 (1967) (“The mandate to grant licenses that serve the public [interest]… does not constitute the FCC the moral proctor of the public or the den mother of the audience.”)

[8] Adam Thierer, The Progress & Freedom Foundation, We Are Living in the Golden Age of Children’s Programming, Progress Snapshot 5.6, July 2009, www.pff.org/issues-pubs/ps/2009/pdf/ps5.6-childrens-television-golden-age.pdf.

[9] Adam Thierer, The Progress & Freedom Foundation, Parental Controls and Online Child Protection: A Survey of Tools and Methods, Version 4.0 (2008) (“PFF Parental Controls Report”), www.pff.org/parentalcontrols.

[10] Comments of The Progress & Freedom Foundation and the Electronic Frontier Foundation In the Matter of Empowering Parents and Protecting Children in an Evolving Media Landscape, Federal Communications Commission, MB Docket No. 09-194, Feb 24, 2010, www.pff.org/issues-pubs/filings/2010/2010-02-24-PFF-EFF_Response_to_FCC_Empowering_Parents_Protecting_Children_NOI_MB_09-194.pdf; Adam Thierer, The Progress & Freedom Foundation, Comments in the Matter of Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, Federal Communications Commission, MB Docket No. 09-26, April 15, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5BFCC-FILING%5D-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-%28MB-09-26%29.pdf.

[11] The number of channels available on multichannel video distribution platforms skyrocketed from just 70 in 1990 to 565 in 2006, the last year for which the FCC has released data. Federal Communications Commission, Thirteenth Annual Video Competition Report, MB Docket No. 06-189, Nov. 27, 2007, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-206A1.pdf.

[12] For an up-to-date list, see National Cable & Telecommunications Association, Cable Networks, www.ncta.com/Organizations.aspx?type=orgtyp2&contentId=2907, or Wikipedia, List of United States Cable and Satellite Television Networks,  http://en.wikipedia.org/wiki/List_of_United_States_cable_and_satellite_television_networks.

[13] All C-SPAN data confirmed by Peter Kiley, Vice President, C-SPAN Networks. Also see: Marking 30 Years. Covering Washington Like No Other, www.c-span.org/30Years/default.aspx.

[14] www.c-spanvideo.org/videoLibrary

[15] Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.  And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” Walter Lippmann, Public Opinion (1922), p. 53, 57.

[16] Id., at 374.

[17] Among the expanded public interest responsibilities regulatory advocates promote: Controls on speech (indecent or “excessively violent” content); expanding coverage of political campaigns, debates and developments; free (or lower-cost) campaign ad time; expanded “educational” or cultural programming (especially aimed at children); and expanded coverage of community affairs and public service announcements.

[18] See Randolph J. May, The Public Interest Standard: Is It Too Indeterminate to Be Constitutional? 53 Fed. Comm. L. Jour. (May 2001) at 427-68, www.law.indiana.edu/fclj/pubs/v53/no3/may.pdf.

[19] Jonathan Emord, Freedom, Technology and the First Amendment (1991).

[20] Miami Herald v. Tornillo, 418 U.S. 241(1974).

[21] Even FCC officials have acknowledged this. See John W. Berresford, Federal Communications Commission, The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed, FCC Media Bureau Staff Research Paper No. 2005-2, (March 2005) www.fcc.gov/ownership/materials/already-released/scarcity030005.pdf. Berresford refers to the scarcity rationale as “outmoded,” “based on fundamental misunderstandings of physics and economics,” and “no longer valid.”

[22] See Adam Thierer and Grant Eskelsen, The Progress & Freedom Foundation, Media Metrics: The True State of the Modern Media Marketplace (Summer 2008), www.pff.org/mediametrics; Adam Thierer, The Media Cornucopia, 17 City Journal 2 (Spring 2007) at 84-89, www.city-journal.org/html/17_2_media.html.

[23] See Benjamin M. Compaine, The Media Monopoly Myth: How New Competition is Expanding Our Sources of Information and Entertainment, New Millennium Research Council (2005) www.newmillenniumresearch.org/archive/Final_Compaine_Paper_050205.pdf.

[24] Reno v. American Civil Liberties Union, 521 US 844, 874 (1997); American Civil Liberties Union v. Gonzales, 478 F.Supp.2d 775, 795 (E.D.Pa. 2007).

[25] See, e.g., Video Software Dealers Association v. Schwarzenegger, 556 F.3d 950, 965-967 (9th Cir. 2009); Entertainment Software Ass’n v. Blagojevich, 469 F.3d 641, 652 (7th Cir. 2006); Interactive Digital Software Association, et. al. v. St. Louis County, et. al., 329 F.3d 954 (8 Cir. 2003); American Amusement Machine Association, et al. v. Kendrick, et al., 244 F.3d 572 (7th Cir. 2001); Entertainment Software Ass’n v. Granholm, 426 F Supp 2d 646 (E.D. Mich. 2006); Video Software Dealers Association, et. al. v. Maleng, et. al., 325 F. Supp.2d 1180 (W.D. Wa. 2004).  See generally Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate Over Video Game Regulation, Progress on Point 13.7, March 2006, at 13-18 www.pff.org/issues-pubs/pops/pop13.7videogames.pdf (discussing cases striking down state video game laws); Henry Cohen, Constitutionality of Proposals to Prohibit the Sale or Rental to Minors of Video Games with Violent or Sexual Content or Strong Language, Congressional Research Service, U.S. Library of Congress (Jan. 12, 2006), http://digital.library.unt.edu/ark:/67531/metacrs9144/m1/1/high_res_d/.

[26] Adam Thierer, Why Regulate Broadcasting : Toward a Consistent First Amendment Standard for the Information Age, Catholic University Law School, 15 CommLaw Conspectus (Summer 2007) at 431-482; http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf. Randy May as referred to these artificial distinctions as “techno-functional constructs.” Randolph J. May, Charting a New Constitutional Jurisprudence for the Digital Age, Engage (Oct. 2008) at 109.

[27] Henry Jenkins, founder and director of the MIT Comparative Media Studies Program and author of Convergence Culture: Where Old and New Media Collide, defines convergence as “the flow of content across multiple media platforms, the cooperation between multiple media industries, and the migratory behavior of media audiences who will go almost anywhere in search of the kinds of entertainment experiences they want.” Henry Jenkins, Convergence Culture: Where Old and New Media Collide (2006) at 2.

[28] Nicholas Negroponte, Being Digital (1995).

[29] Royal Pingdom, Internet 2009 in Numbers, Jan. 22, 2010, http://royal.pingdom.com/2010/01/22/internet-2009-in-numbers.

[30] Id.

[31] Id.

[32] Gavin O’Malley, Comcast Taps Hispanic Web Portal, MediaPost News, Online Media Daily, March 8, 2006, www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=40714

[33] Royal Pingdom, supra 29.

[34] David Sifry, The State of the Live Web, April 2007, www.sifry.com/alerts/archives/000493.html

[35] comScore, The 2009 U.S. Digital Year in Review – A Recap of the Year in Digital Marketing 10, Feb. 2010, http://www.comscore.com/Press_Events/Press_Releases/2010/2/comScore_Releases_2009_U.S._Digital_Year_in_Review.

[36] Id.

[37] Id. at 12.

[38] Ryan Junee, Zoinks! 20 Hours of Video Uploaded Every Minute!, Broadcasting Ourselves: The Official YouTube Blog, May 20, 2009, http://youtube-global.blogspot.com/2009/05/zoinks-20-hours-of-video-uploaded-every_20.html

[39] Royal Pingdom, supra 29.

[40] Royal Pingdom, supra 29.

[41] Apple, 140,000 apps at your fingertips. From day one., www.apple.com/ipad/app-store.

[42] Press Release, Apple, Apple’s App Store Downloads Top Three Billion (Jan. 5, 2010), www.apple.com/pr/library/2010/01/05appstore.html.

[43] Press Release, Apple, iTunes Store Tops 10 Billion Songs Sold (Feb. 25, 2010), www.apple.com/pr/library/2010/02/25itunes.html.

[44] Facebook, Statistics, www.facebook.com/press/info.php?statistics (last accessed Mar. 2, 2010).

[45] Katalaveno, Edit growth measured in time between every 10,000,000th edit, en.wikipedia.org/wiki/User:Katalaveno/TBE (last accessed Mar. 2, 2010).

[46] Twitter Blog, Measuring Tweets, Feb. 22, 2010, http://blog.twitter.com/2010/02/measuring-tweets.html.

[47] Royal Pingdom, supra 29.

[48] Statistics derived from various sources, but all can be found in Adam Thierer and Grant Eskelsen, The Progress & Freedom Foundation, Media Metrics: The True State of the Modern Media Marketplace (Summer 2008), www.pff.org/mediametrics.

[49] Federal Communications Commission, Thirteenth Annual Video Competition Report, MB Docket No. 06-189, Nov. 27, 2007, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-206A1.pdf.

[50] Central Intelligence Agency, The World Fact Book, United States, www.cia.gov/library/publications/the-world-factbook/geos/us.html (data is from 2006).

[51] Id.

[52] Magazine Publishers of America, Magazines: The Medium of Action, A Comprehensive Guide and Handbook 2009/10, at 8, www.magazine.org/ASSETS/088C8564EB9E4E978A69B183881AEF58/MPA-Handbook-2009.pdf.

[53] Bowker, Bowker Reports U.S. Book Production Flat in 2007, May 28, 2008, www.bowker.com/index.php/press-releases/526.

[54] “Advertising is the mother’s milk of all the mass media,” Wall Street Journal technology columnist Walt Mossberg has noted. Walter Mossberg, Now You See ‘Em…, SmartMoney.com, June 15, 2000, available at http://web.archive.org/web/20061124235126/http://www.smartmoney.com/mossberg/index.cfm?story=20000615; And Harold L. Vogel, author of Entertainment Industry Economics, the definitive textbook for media market analysts, has noted, “Advertising is the key common ingredient in the tactics and strategies of all entertainment and media company business models. Indeed, it might further be said that advertising has substantively subsidized the production and delivery of news and entertainment throughout the last century.” Harold L. Vogel, Entertainment Industry Economics (Cambridge University Press, 7th Edition, 2007) at 46.

[55] Adam Thierer & Berin Szoka, The Hidden Benefactor: How Advertising Informs, Educates & Benefits Consumers, Feb. 22, 2010, www.pff.org/issues-pubs/ps/2010/ps6.5-the-hidden-benefactor.html; Berin Szoka & Adam Thierer, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, April 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf; Berin Szoka & Adam Thierer, Behavioral Advertising Industry Practices Hearing: Some Issues that Need to be Discussed, PFF Blog, June 18, 2009, http://blog.pff.org/archives/2009/06/behavioral_advertising_industry_practices_hearing.html

[56] For example, Robert McChesney and John Nichols advocate a “Citizenship News Voucher” that would give every American adult a $200 voucher to donate money to the non-profit news medium of their choice. Of course, a number of restrictions would apply to eligible entities, including a ban on accepting advertising as a condition of receiving support from the program. Robert W. McChesney & John Nichols, The Death and Life of American Journalism (2010) at 201-6.

[57] For a recent debate on the question of broadcast spectrum taxes, see: Resolved, Broadcasters Should be Charged a Spectrum Fee to Finance Programming in the Public Interest, Pro: Norm Ornstein, Con: Adam Thierer, in Richard J. Ellis and Michael Nelson, Debating Reform: Conflicting Perspectives on How to Fix the American Political System (2010) at 53-69. Also see McChesney & Nichols, supra 56 at 209-10.

[58] For example, Free Press calls for “government incentives to encourage local ownership and media divestiture.” They want to prevent private media operators from attaining greater scale at the exact time they probably need to do so. Instead, they would subsidize those media entities who went non-commercial and disaggregated to become more atomistic. Comments of Free Press In the Matter of News Media Workshops: From Town Crier to Bloggers: How Will Journalism Survive the Internet Age? Federal Trade Commission, Project No. P091200, Nov. 6, 2009, at 21, www.ftc.gov/os/comments/newsmediaworkshop/544505-00027.pdf.

[59] Free Press advocates channeling more money to public media by affixing “a small tax” on private commercial advertising. Comments of Free Press In the Matter of News Media Workshops: From Town Crier to Bloggers: How Will Journalism Survive the Internet Age? Federal Trade Commission, Project No. P091200, Nov. 6, 2009, at 18, www.ftc.gov/os/comments/newsmediaworkshop/544505-00027.pdf.

[60] McChesney & Nichols, supra 56 at 210-11. They advocate a 5% tax on consumer electronics and a 3% tax on monthly cell phone bills to channel money into a massive new “public works” program for the press.

[61] www.onguardonline.gov/about-us/overview.aspx

[62] www.onguardonline.gov/default.aspx

[63] www.onguardonline.gov/pdf/tec04.pdf

[64] www.kidzui.com

[65] www.glubble.com

[66] www.buddybrowser.com

[67] http://kidrocket.org

[68] www.kidoz.net

[69] www.noodlenet.com

[70] www.hoopah.com

[71] www.peanutbuttersoftware.com

[72] Brian C. Anderson & Adam D. Thierer, A Manifesto for Media Freedom (2008).

[73] See Adam Thierer, Why Regulate Broadcasting : Toward a Consistent First Amendment Standard for the Information Age, Catholic University Law School, 15 CommLaw Conspectus (Summer 2007) at 431-482; http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf; Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage (Feb. 2009) www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf.

[74] See Adam Thierer, The Progress & Freedom Foundation, Thinking Seriously about Cable and Satellite Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill (2005) www.pff.org/issues-pubs/pops/pop12.6CableCensorship.pdf; Robert Corn-Revere, The Progress & Freedom Foundation, Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio? (2005) www.pff.org/issues-pubs/pops/pop12.8indecency.pdf.

Adam Thierer (PFF) Remarks at FCC Hearing on Public Interest in Digital Era (3-4-10) http://d1.scribdassets.com/ScribdViewer.swf

]]> https://techliberation.com/2010/03/03/testimony-at-fccs-hearing-on-%e2%80%9cserving-the-public-interest-in-the-digital-era%e2%80%9d/feed/ 8 26697 C-SPAN, Civic-Minded Programming & Public Interest Regulation https://techliberation.com/2010/03/02/c-span-civic-minded-programming-public-interest-regulation/ https://techliberation.com/2010/03/02/c-span-civic-minded-programming-public-interest-regulation/#comments Tue, 02 Mar 2010 21:33:14 +0000 http://techliberation.com/?p=26649

C-SPAN is really quite incredible when you think about it.  When I was growing up in the 70s, there was nothing like it. Like most other Americans, my informational inputs about national news and politics were limited to what a couple of old white dudes in bad suits delivered each night around 6:30 on the three VHF channels I had access to. And no national newspapers were delivered to my small town in rural Illinois, so I had to rely on crummy local papers to fill the void via whatever national reporting they offered, which wasn’t much.

And then came C-SPAN.  C-SPAN alone covers more political and civic-minded activity in the course of a week than most of us probably came into contact with in our entire lives just 30 years ago. Consider these data points, which Peter Kiley, Vice President of C-SPAN Networks was kind enough to help me aggregate. In the 2009 calendar year, C-SPAN provided the following amount of first run programming across their three channels:

  • 8,438 overall hours of programming;
  • 2,709 hours of House & Senate floor activity; and,
  • 1,222 hours of House & Senate committee hearings.

Moreover, C-SPAN recently created the C-SPAN Video Library, which archives 23 years worth (1987-on) of fully searchable (and free) video content, including:

  • 161,000 overall hours of programming;
  • 56,600 hours of House & Senate floor activity; and,
  • 20,152 of House & Senate committee hearings.

That’s incredible. But here’s what’s more impressive: Many people fail to realize that C-SPAN is a private, non-profit company that is provided as a public service by cable industry contributions. It receives no government or taxpayer contributions. From 1979-2009, total license fees paid by cable & satellite companies to support C-SPAN totaled $922 million. That’s what brings you this amazing, unprecedented civic resource.

OK, let me step back and explain why I started thinking about C-SPAN.  I’ve been invited to testify at a Federal Communications Commission hearing this Thursday on “Serving the Public Interest in the Digital Era.” I suspect that one of the laments we’ll hear from some of the participants is the old “deliberative democracy is dead” line. Debates about public interest regulation often take on a mythical tone as regulatory advocates wax nostalgic about some supposedly Golden Era of Civic Engagement when we were all better informed and publicly active. It’s pure rubbish, as I showed in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership. (See chapter 4, “Democracy, Civic Discourse, and the ‘Public Interest.'”)

Nonetheless, the myth persists and often leads to calls for aggressive regulation of media markets in the name of serving “the public interest.” Regulatory advocates typically claim that government must intervene and layer on regulatory mandates if citizens are to have access to the requisite amount of political programming or civic-minded content necessary for deliberative democracy to survive.

But is there really any shortage political programming or civic-minded content from which to choose today? C-SPAN’s existence alone seems to prove the contrary, but it’s hardly the only platform through which such content is available. Let’s not forget about what the Internet has made available to us. It has given us unprecedented access to public affairs information—local, state, national, and international.

But here’s the thing that a lot of “public interest” advocates always seem to ignore: Regardless of how much beneficial civic content is out there, you can’t make people watch, listen, or read it if they don’t want to. “Today, the scarce resource is attention, not programming,” notes Ellen P. Goodman of the Rutgers-Camden School of Law. “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” [Ellen P. Goodman, “Proactive Media Policy in an Age of Content Abundance,” in Philip M. Napoli, ed., Media Diversity and Localism: Meaning and Metrics (2007) at 370, 374.]

And there is no reason to believe this situation has ever been different or will ever change. Writing in 1922, famed journalist Walter Lippmann noted that, “it is possible to make a rough estimate only of the amount of attention people give each day to informing themselves about public affairs,” but “the time each day is small when any of us is directly exposed to information from our unseen environment.” [Walter Lippmann, Public Opinion (1922), p. 53, 57.]  Of course, in Lippmann’s day, one could have reasonable argued that was because such content simply wasn’t available to the masses. Today, by contrast, the content is available, it’s just that we have a lot of other informational and entertainment outputs vying for our attention.

Absent truly repressive measures to limit choices or forcibly alter consumer media consumption patterns, it will be impossible for policymakers to force the masses to pay attention to what they want them to see or hear in an age of abundant media content and unrestricted choice. “[R]egulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest,” argues Goodman.

Luckily, public officials need not resort to such repressive steps. Even if we only access C-SPAN on rare occasions, or browse political information on the Net at random intervals in the days leading up to an election, that’s more information than we ever had at our disposal in those mythical “good ‘ol days.” We should be celebrating this fact, but I suspect a lot of people at the FCC’s hearing on Thursday will be bemoaning it instead.

]]> https://techliberation.com/2010/03/02/c-span-civic-minded-programming-public-interest-regulation/feed/ 18 26649 event: Dec. 1st Debate about Future of Broadcast TV Spectrum https://techliberation.com/2009/11/18/event-dec-1st-debate-about-future-of-broadcast-tv-spectrum/ https://techliberation.com/2009/11/18/event-dec-1st-debate-about-future-of-broadcast-tv-spectrum/#comments Wed, 18 Nov 2009 16:16:40 +0000 http://techliberation.com/?p=23586

As I noted in a recent paper with my PFF colleague Barbara Esbin (“An Offer They Can’t Refuse: Spectrum Reallocation That Can Benefit Consumers, Broadcasters & the Mobile Broadband Sector“) an official at the Federal Communications Commission (Blair Levin) recently suggested that it might be possible to craft a grand bargain whereby television broadcasters get cash for some (or all) of their current spectrum if they return it to the FCC for reallocation and auction.  Such a deal could, eventually, open up significant amounts of prime spectrum for next-generation mobile broadband and data services.

Is such a deal feasible and in the best interests of broadcasters?  Is the arrangement necessary to encourage growth in broadband penetration consistent with the goals of the Recovery Act?  Will Congress go along with the deal, or would it be blocked as contrary to “the public interest?” Alternatively, would lawmakers back the deal but seek a significant cut of the auction proceeds, leaving less available for broadcasters?  These and other policy issues will be discussed at “ Let’s Make a Deal:  Broadcasters, Mobile Broadband, and a Market in Spectrum,” a congressional seminar hosted by The Progress & Freedom Foundation. The event will be held Tuesday, December 1st from 9:00am to 11:00am in the Holeman Lounge, 13th Floor, at the National Press Club, 529 14th Street, NW in Washington, DC.

Panelists confirmed so far for the event include:

  • Blair Levin, Executive Director, Omnibus Broadband Initiative, Federal Communications Commission
  • Coleman Bazelon, Principal, The Brattle Group
  • David Donovan, President, Association for Maximum Service Television
  • Kostas Liopiros, Principal, The Sun Fire Group
  • John K. Hane, Counsel, Pillsbury Winthrop Shaw Pittman LLP
  • and 1 or 2 more to come!

I will be moderating the event.  Those interested in attending can register here.  Should be a spirited debate.

]]> https://techliberation.com/2009/11/18/event-dec-1st-debate-about-future-of-broadcast-tv-spectrum/feed/ 7 23586 Heading to Oxford Univ. for Forum on “Child Protection, Free Speech and the Internet” https://techliberation.com/2009/09/29/heading-to-oxford-univ-for-forum-on-child-protection-free-speech-and-the-internet/ https://techliberation.com/2009/09/29/heading-to-oxford-univ-for-forum-on-child-protection-free-speech-and-the-internet/#comments Tue, 29 Sep 2009 13:49:09 +0000 http://techliberation.com/?p=21848

Oxford UniversityI’ll be heading to Oxford University this week to participate in an Oxford Internet Institute (OII) forum on the subject of “Child Protection, Free Speech and the Internet: Mapping the Territory and Limitations of Common Ground.”  It’s being led by several experts from the OII as well as my good friends John Morris and Leslie Harris of the Center for Democracy & Technology (CDT).  The aims of this forum are:

  • To facilitate a dialogue between NGOs campaigning to protect respectively, child protection and children’s rights online, and freedom of speech and other civil liberties online.
  • To promote a better understanding of each others’ positions, to share perspectives and information with a view to identifying areas of common ground and areas of disagreement.
  • To identify any shared policy goals, and possible tools to support the achievement of those goals.
  • To publicize the findings of the forum in international policy debates about Internet governance and regulation.

Conference participants were asked to submit a 2-3 pg summary of their views on a couple of questions that will be discussed at this event.  I have listed those questions, and my answers, down below the fold.  It’s my best attempt to date to succinctly outline my views about how to balance content concerns and free speech issues going forward. 

What is the nature of your interest or experience in this field?

I have spent the last 18 years covering the intersection of child safety concerns and free speech issues at four different think tanks.  In recent years, I have tied together all my research in a constantly updated Progress & Freedom Foundation special report entitled, “Parental Controls & Online Child Protection: A Survey of Tools & Methods.” The 4th edition of this 250-page report was released in August.

Are there particular values or principles which underlie your work?

The goal of my research has been to explore the tension between free speech and child protection and to identify methods of striking a sensible balance between these two important values.   It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary.

In the past, it was thought to be too difficult for families to enforce their own “household standard” for acceptable content. Thus, many believed government needed to step in and create a baseline “community standard” for the entire citizenry.  Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies.

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information.  Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the “household empowerment vision.”

Will we ever be able to achieve a world of perfect parental control over all online content and communications?  That is unlikely since both content and technology will continuously evolve and make that goal elusive. But government regulation of speech should yield where less restrictive alternatives such as household-based controls and strategies exist.  Given the value associated with free speech and the danger of government censorship, these alternatives need not be perfect to be preferable to government regulation.

What are the issues/policies or laws which you see as most problematic in terms of creating or illustrating a conflict between online child protection and free speech?

It is essential that policymakers resist the temptation to extend traditional broadcast industry regulatory statutes and standards to new media outlets and digital technologies.  In a world of media convergence and increasing user empowerment, traditional regulatory rationales make increasingly less sense.  Nonetheless, many ongoing social problems and challenges remain to achieving the “household empowerment vision” I outlined above, including:

  • The “lack of awareness” problem: Some parents remain unaware of empowerment tools.
  • The “bad parent” problem: Some parents don’t use tools even when aware of them.
  • The “bad neighbor” problem: “Good” parents fear what happens when their kids visit other kids with more permissive parents.
  • The “generation gap” problem: Kids sometimes know more about new digital technologies than their parents.
  • The “technological surprise” problem: Rapid emergence and diffusion of new digital technologies can catch some parents by surprise.
  • The “bad corporate actor” problem: Most companies self-regulate, but a handful push the boundaries of good taste in ways that create social concerns that reflect on industry generally.
  • The “user-generated content” problem: Even when “professional” content can be managed, it is difficult to control “amateur” expression and creations.
  • The “peer-on-peer bullying” problem: While many are concerned about predators, the real online safety problem turns out to be cyber-bullying among peers.

Because of these ongoing social challenges or concerns, legal and regulatory proposals will continue to be put forward. But each has serious downsides:

  • Future of filtering: Centralized, network-based or decentralized, user-based?  The former creates serious censorship threats, as we see in China and other repressive states. The latter is more consistent with the household empowerment vision.
  • Middleman deputization: Should online intermediaries be required to police the Net for various social ills?  If so, as hand-maidens of the state, they could become over-zealous speech regulators.
  • Universal content ratings: Can policymakers mandate unified (or “scientific”) content media ratings?  Doing so puts regulators in a position to dictate content standards—for better or worse.  Moreover, this does nothing to address user-generated “amateur” content.
  • Mandatory online age / identity verification: Potentially threatens anonymity, privacy, and free speech rights.  Moreover, to the extent “bad guys” continue to get into “secured” environments it creates a false sense of security for parents and kids.
  • Expanded data retention: Although it would help facilitate some law enforcement goals, it also gives rise to new privacy and data breach risks.

Might any of these conflicts be avoidable, e.g. through the use of improved legislative instruments or greater clarity and accountability in processes of self-regulation?

For the above reasons, it makes more sense to put our energies into finding new self-regulatory mechanisms, social norms, and user empowerment strategies to solve ongoing social problems instead of focusing on regulatory solutions or mandates.  Instead of providing greater clarity, legislative instruments are more likely to instead create greater ambiguity, or at least uncertainty, for content creators and consumers alike. This is because, as was noted above, “community standards” are notoriously subjective; they are ham-handed attempts to gloss over the diverse needs and values of a diverse citizenry. By contrast, self-regulation, social norms, and empowerment strategies are evolutionary in character and more responsive to differences among cultures and households.

What are the issues where you think there might be most scope for finding some common ground?

In two words: empowerment and education. Because reliance on legislation is perilously difficult and enforcement of regulatory mandates is complicated (and sometimes impossible in an increasingly borderless world), efforts to better empower families and educate both kids and parents offer the most sensible path forward.  All stakeholders involved in child safety and free speech debates can generally agree that empowerment efforts, media literacy programs, awareness-building programs, and so on, are both effective and unobjectionable.

At the international level, are there certain key principles which we ought to be defending above all others?

Because of the “values clash” at the international level, it’s hard to imagine we’ll ever achieve consensus on some of these issues.  Countries vary widely in their sensitivities about speech, making any attempt to devise “universal principles” complicated.  For example, Europeans generally deride America’s prudish ways when it comes to matters of sexuality or “indecency.”  By contrast, most Americans cannot understand European concerns about “hate speech” or violently-themed media.  Meanwhile, governments in many other parts of the world are still busy trying to quell political or religious dissent.  “Harmonization” among those competing cultural norms remains complicated, therefore, and it would be a mistake if international harmonization was accomplished by sacrificing free speech rights for countries and cultures who cherish them.

]]> https://techliberation.com/2009/09/29/heading-to-oxford-univ-for-forum-on-child-protection-free-speech-and-the-internet/feed/ 24 21848 The Week the Fairness Doctrine Died https://techliberation.com/2009/03/01/the-week-the-fairness-doctrine-died/ https://techliberation.com/2009/03/01/the-week-the-fairness-doctrine-died/#comments Mon, 02 Mar 2009 03:43:26 +0000 http://techliberation.com/?p=17163

TombstoneWhen the history books are finally written documenting America’s failed experiment with broadcast industry content regulation, this past week may go down as a critical moment in the story.  The obvious reason this week was so important was the Senate’s 87-11 vote on Thursday to prevent the Federal Communications Commission (FCC) from reinstating the Fairness Doctrine.  But an equally important development this past week was the release of a new white paper by the radical Leftist activist group Free Press.

The Free Press, which was founded by the socialist media theorist Robert McChesney, doesn’t typically publish many things admitting to the failures of coercive government regulation. Nonetheless, in “The Fairness Doctrine Distraction,” a paper by Josh Silver and Marvin Ammori, the media reformistas at Free Press told their Big Government comrades in Congress and academia that it was finally OK to let go of at least this one old pet project of theirs.  In their paper, Silver and Ammori note that, “The Fairness Doctrine put the federal government in the position of judging content and controlling speech” and “Reinstating the Doctrine will not result in greater viewpoint diversity in broadcasting.”  They continue:

The Fairness Doctrine, while originally well-intentioned, is not wise public policy. [T]he Doctrine places the FCC in charge of determining what is fair in political speech — a difficult task in the best of circumstances. Placing the government in the role of monitoring and judging political speech will inevitably produce controversy that is impossible to resolve.

I applaud the Free Press for finally fessing up to the Fairness Doctrine’s many failings.  This First Amendment-violating abomination should have never been allowed to be enforced by the FCC to begin with, but at least we can now all finally agree it should stay off the books for good.

Of course, the radicals at the (Un)Free Press weren’t about to let one of the Left’s old favorite regulations go so away without asking for something in return.  One of the reasons that Silver and Ammori are suddenly willing to give their blessing to the Doctrine’s burial is because they want to get on with the more far-reaching agenda of micro-managing media markets using a variety of less visible regulations.

Indeed, in their paper, Silver and Ammori go to great pains to try to show that the Fairness Doctrine supposedly has nothing to do with all the other regulations that they want Congress and the FCC to continue to enforce, or even expand.  These goals include media ownership restrictions, diversity mandates, local programming regulation, and so on.  Recognizing that the Fairness Doctrine was not only ineffective but also a useful tool for many on the political Right to whip their base into action, the Free Press moved to preemptively divorce their other pet projects from the Fairness Doctrine.

It’s a brilliant tactical move by Free Press; lull Limbaugh and other conservatives into a deep sleep by throwing them the bone of a Fairness Doctrine win, and then push a far more radical regulatory agenda through the back-door once they’ve stopped paying attention.  Of course, these things cannot be as easily divorced as the Free Press radicals want us to believe.  The Fairness Doctrine was just one part of a much grander regulatory paradigm that so-called progressives have pushed for under the banner of “public interest regulation.”

There’s a rich mythology that has built up around “the public interest” efforts of the progressives, but like the Fairness Doctrine, it’s all just arbitrary government abuse of the First Amendment at the end of the day. Indeed, as I’ve noted here before, the public interest standard is not really a “standard” at all since it has no fixed meaning.  The definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.  As such, it represents an utter betrayal of the First Amendment and the rule of law.  And all the regulations that are pursued in the name of “serving the public interest” are really nothing more than crass political thuggery that have no relationship to what the public actually wants to see or hear.  The “public interest” should be what the public says it is, not a handful of unelected bureaucrats who want to spoon feed us nonsense we don’t want and then censor that stuff we actually desire.

The folks at the Free Press can tell us that there is no linkage between the Fairness Doctrine and all these other regulations, but that doesn’t make it so.  At the end of the day, these regulations share many things in common, especially their hopelessly arbitrary, First Amendment-betraying nature.

Thus, the war for true media freedom will continue.  Nonetheless, it is important not to lose sight of the important win this week for that cause with both Congress and the Free Press acknowledging the anti-free speech, diversity-destroying nature of the UnFairness Doctrine.

]]> https://techliberation.com/2009/03/01/the-week-the-fairness-doctrine-died/feed/ 20 17163 Copps: The “Public Interest” Requires Regulation of the Internet! https://techliberation.com/2009/02/25/copps-the-public-interest-requires-regulation-of-the-internet/ https://techliberation.com/2009/02/25/copps-the-public-interest-requires-regulation-of-the-internet/#comments Wed, 25 Feb 2009 18:07:22 +0000 http://techliberation.com/?p=17059

Acting FCC Chairman Michael Copps declared yesterday in a speech celebrating the 75th anniversary of the FCC and the Communications Act, that it was time to think “more rigorously” about the impact of the migration of communications to the Internet and “how to ensure that as the Internet becomes our primary vehicle for communicating with one another, it protects the public interest and informs the civic dialogue that America depends on.”

“In the beginning was the Word,” said John Something-or-other.  Well, the word here is “public interest” and—make no mistake about it—this is the beginning of a wholesale attempt to impose the regulatory regime of the broadcast era onto the Internet.

As Adam Thierer has pointed out, the “public interest” is really no standard at all—just so much hot air.

]]> https://techliberation.com/2009/02/25/copps-the-public-interest-requires-regulation-of-the-internet/feed/ 14 17059 Which Republican for the FCC? https://techliberation.com/2009/02/06/which-republican-for-the-fcc/ https://techliberation.com/2009/02/06/which-republican-for-the-fcc/#comments Sat, 07 Feb 2009 03:15:59 +0000 http://techliberation.com/?p=16432

Over at TVNewsday, Harry A. Jessell writes:

I don’t like the way the new FCC is shaping up. There’s something missing.

My concern has nothing to do with Julius Genachowski, whom the president has reportedly tapped for chairman….

What I’m having trouble with are the names popping up for the Republican seat….

All [the rumored candidates] work or used to work on Capitol Hill. They are basically experts on policymaking, crafting legislation and Washington politics, but not much else.

The seat is turning into a reward for loyalty and a test of whose boss has the most clout.

Bad idea.

As the professed champion of business, the Republicans should award the seat to a businessman or a businesswoman.

I’m talking about somebody who has actually done some hiring and firing, made a payroll in tough times, sweated a big sale, produced goods or services, acquired another company, got a loan to expand operations or survive a downturn and struggled to untangle and comply with federal regulations.

There’s a double standard here.

Ajit Pai, for example, who is one of the Republican candidates, is Deputy General Counsel of the FCC.  He served as Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Senior Counsel at the Office of Legal Policy at the U.S. Department of Justice, Deputy Chief Counsel of the U.S. Senate Judiciary Committee’s Subcommittee on Administrative Oversight and the Courts, an Honors Program trial attorney in the Telecommunications Task Force at the U.S. Department of Justice’s Antitrust Division and a law clerk to Judge Martin L.C. Feldman of the U.S. District Court for the Eastern District of Louisiana. He graduated with honors from Harvard College and from the University of Chicago Law School, where he was an editor of the University of Chicago Law Review.

Sounds an awful lot like the background of Julius Genachowski or, for that matter, President Obama.

Aside from Pai, each and every one of the Republican candidates is highly accomplished and is easily as qualified as any other recent FCC nominee.

As the title of his column, “Wanted: A Broadcaster for the FCC,” suggests, Jessell wants a special interest advocate to fill the vacant seat.

Who might that be?  Jessell doesn’t say.

The FCC is supposed to regulate and deregulate in the public interest, not in the interest of established commercial entities just because they have to hire and fire, make a payroll in tough times, sweat a big sale, produce goods or services, acquire another company, get a loan to expand operations or survive a downturn and struggle to untangle and comply with federal regulations.

In short, the purpose of the FCC is not to ensure the profitability of the entities it regulates, but to ensure that innovation can flourish.  Innovation leads to more competitors, new or better services and ultimately lower prices.  Sometimes established firms must be allowed to fail.

The problem with the FCC is that it has become a special interest playground.  It ought to be eliminated, of course.  But since that isn’t possible at the moment, we ought to insist on having commissioners who are experienced in communications policy, and, yes, who understand policymaking, crafting legislation and Washington politics.  They should be principled and diplomatic.  They should have the temperament to be able to compromise or to respectfully dissent, depending on the circumstances.  They should grasp, but not feel beholden to special interests.

If anything, Senate staffers are more likely to have acquired these skills, not less.

So I say, yes, perhaps we need a Senate staffer who has been schooled in the public interest, not an executive who is beholden to a special interest.

]]> https://techliberation.com/2009/02/06/which-republican-for-the-fcc/feed/ 11 16432 Tim Wu on Obama, McCain, and “a Chicken in Every Pot” https://techliberation.com/2008/09/10/tim-wu-on-obama-mccain-and-a-chicken-in-every-pot/ https://techliberation.com/2008/09/10/tim-wu-on-obama-mccain-and-a-chicken-in-every-pot/#comments Wed, 10 Sep 2008 19:03:56 +0000 http://techliberation.com/?p=12582

Writing at Slate, Tim Wu tries to make Obama out to be the real Big Government candidate on media policy, who will deliver “if not a chicken in every pot, a fiber-optic cable in every home.” By contrast, Wu implies that McCain is just another pro-big business lackey who doesn’t understand “that the media and information industries are special—that like the transportation, energy, or financial industries, they are deeply entwined with the public interest.” Wu goes on to say:

Ultimately, most of the difference in Obama’s and McCain’s media policies boils down to questions about whether the media is special and a dispute over how much to trust the private sector. Camp McCain would tend to leave the private sector alone, with faith that it will deliver to most Americans what they want and deserve. The Obama camp would probably administer a more frequent kick in the pants, in the belief that good behavior just isn’t always natural.

First, as a factual matter, Wu is just wrong about McCain being some sort of a radical hands-off, pro-market liberalizer on media policy issues. Oh, if only that were true! But for those of us who have been in DC covering telecom and media policy for many years, it is widely understood there is no nailing down John McCain on any tech, telecom or media policy issue. He’s been all over the board. While he has sponsored or supported some deregulatory initiatives on the telecom front in the past, he’s also been a supporter of other regulatory causes. His battles with broadcasters and cable, for example, are well-known. Most recently, McCain has been leading the effort to impose a la carte mandates on cable and satellite operators. And if you’re all about Big Government credentials, then don’t forget McCain-Feingold, a law that made it a felony for corporations, nonprofit advocacy groups, and labor unions to run ads that criticize–or even name or show–members of Congress within 60 days of a federal election. And then there was the far more troubling McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections—without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

This sounds like the sort of Big Government Media Agenda that should make Tim Wu happy, but he doesn’t mention any of it in his essay.

But let me address the more fundamental, and quite mistaken, premise that underlies Wu’s essay — namely, that increased government activism in the media and broadband marketplace will somehow lead us to techno-nirvana. When Wu states that “the difference in Obama’s and McCain’s media policies boils down to questions about whether the media is special and a dispute over how much to trust the private sector,” he conveniently ignores the flip-side of that statement. That is, shouldn’t the real question here be: “How much do we trust the public sector”? Wu apparently assumes that “public interest” regulation will be all wine and roses. Enlightened, benevolent lawmakers and regulators who understand that media is “special” will concoct just the right mix of regulatory policies that will be pro-consumer, pro-democracy, and pro-free speech.

Sorry, but I’m not buying it. One would need to ignore 100 years worth of experience to believe such fanciful notions, and Wu seemingly does. Somehow, all will be different now. Regulators won’t be captured by special interests. Command-and-control regulation will suddenly become far more efficient and not deter innovation. And policymakers will resist the urge to censor speech.

Do you believe that story? If you’ve read your economic history, you’re probably just as skeptical as I am. It is revisionist history to say that the era of regulated monopoly and “public interest” media regulation was some sort of pro-consumer, pro-innovation, pro-free speech paradise. In reality, a “chicken in every pot” means a regulator on every cyber-corner. And I just don’t understand how someone as smart as Tim Wu thinks the entire process won’t once again come to be captured by the very interests he hopes to “kick in the pants.” They will be wearing the pants before it is over!

I invite Tim Wu and all his activist-minded friends on the Left to take another look at the definitive 2-volume Economics of Regulation by a more enlightened and experienced Democrat, Professor Alfred E. Kahn. In that masterwork, they will find the following words of wisdom (and caution):

When a commission is responsible for the performance of an industry, it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition. […] Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods.
]]> https://techliberation.com/2008/09/10/tim-wu-on-obama-mccain-and-a-chicken-in-every-pot/feed/ 10 12582 Is the Public Interest Standard Really a Standard? https://techliberation.com/2008/08/28/is-the-public-interest-standard-really-a-standard/ https://techliberation.com/2008/08/28/is-the-public-interest-standard-really-a-standard/#comments Fri, 29 Aug 2008 03:12:34 +0000 http://techliberation.com/?p=12308

Stephen Schultze is an up-and-coming technology policy analyst who is a fellow at the Berkman Center for Internet and Society at Harvard University. He is also finishing up his Masters of Science in Comparative Media Studies up at MIT. He’s been kind enough to stop by here at the TLF on occasion and comment on some of the things we have written — usually to give us grief, but we welcome that too! He’s very sharp and always has something of substance to say, and he says it in a respectful way. So I look forward to many years of intellectual combat with him. (Incidentally, we also share a mutual admiration for the work of Ithiel de Sola Pool, especially his 1983 classic, “Technologies of Freedom: On Free Speech in an Electronic Age , which I have noted is my favorite tech policy book of all-time.]

Anyway, Stephen has just posted his master’s thesis: “The Business of Broadband and the Public Interest: Media Policy for the Network Society.” It’s a noble attempt to defend and extend the “public interest” concept in the Digital Age. Stephen attempts to “identify the several dimensions in which it remains relevant today.” In his thesis, Stephen cites some of my past work on the issue since I have articulated a very different view on the issue. Specifically, he cites a line of mine that I have used in multiple studies and essays on the issue:

“The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.”

I stand by that quote and down below I have pasted a lengthy passage on the mythology surrounding the public interest standard, which I pulled directly from my old 2005 “Media Myths” book. It explains in more detail why I feel that way.

“Right now is a critical point of media in transition that will affect the shape communications ecosystem going forward,” Stephen states in his thesis. I couldn’t agree more, but I completely disagree that that somehow justifies breathing new life into a standard-less standard that justifies open-ended, arbitrary governance of the Internet and digital media. Read on to understand why I feel that way…

[The following passage is cut from Chapter 4 of Media Myths: Making Sense of the Debate over Media Ownership, 2005, p. 97-100]

[M]any policymakers continue to prop up public interest notions and regulations in the belief that they are directing the content or character of media (and broadcasting in particular) toward a nobler end; a sort of noblesse oblige for the communications age. At times, their rhetoric takes on a fairy-tale quality as lawmakers and regulators speak of the public interest in reverential and fantastic terms, all the while deftly evading any attempt to define the term. For example, while testifying before the Senate Commerce Committee in January of 2003, FCC Commissioner Michael Copps paid homage to the public interest standard:

At all times, I strive to maintain my commitment to the public interest. As public servants, we must put the public interest front and center. It is at the core of my own philosophy of government…. The public interest is the prism through which we should always look as we make our decisions. My question to visitors to my office who are advocating for specific policy changes is always: how does what you want the Commission to do serve the public interest? It is my lodestar.

That is nice rhetoric, but Commissioner Copps’ public interest “lodestar” ultimately provides little practical guidance. Public interest proponents assume that their values or objectives — which, in their opinion, are consistent with the needs and desires of the public — should ultimately triumph within the public policy arena. Consequently, volumes of government rules and speeches have been penned advocating a large and expanding role for government in terms of defining “the public interest.” But while public interest regulation has been the cornerstone of communications and media policy since the 1930s, enabling regulators to control industry structures and outcomes, at no time during these seven decades of public interest regulation has the term been defined.

Even today, efforts are made to read new powers or responsibilities into the term in order to provide regulators with the flexibility to control modern electronic media (i.e., broadcasting, cable) in ways they could not control older print media (i.e., newspaper, magazines). For example, during the late 1990s, the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters was formed by an executive order of President Bill Clinton to investigate expanding public interest obligations for television broadcasters. The group came up with numerous recommendations to impose new burdens on broadcasters, even as broadcasters struggle to remain competitive with other media outlets that are not burdened with similar public interest regulatory requirements.

Similarly, many academics have advocated a much broader role for government in dictating media outcomes. For example, even though they admit that “One of the dangers in evaluating the media in a public interest framework is that it can easily take on an elitist tone,” David Croteau and William Hoynes go on to pen an entire book dedicated to expanding public interest regulation of media. Among the expanded public interest responsibilities Croteau and Hoynes and other regulatory supporters endorse: public service announcements; expanding coverage of political campaigns, debates and developments; free (or lower-cost) campaign ad time; expanded “educational” or cultural programming (especially aimed at children); and expanded coverage of community affairs.

The problem with all this “public interest” thinking, as Ben Compaine aptly notes, is that “In democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’” The viewing public is likely to have a broad array of interests and desires that cannot be adequately gauged by what five FCC commissioners believe to be in the public interest. Nobel Prize-winning economist Ronald Coase argued 40 years ago that “The phrase… lacks any definite meaning. Furthermore, the many inconsistencies in commission decisions have made it impossible for the phrase to acquire a definite meaning in the process of regulation.” That is still true today. The public interest standard is not really a “standard” at all since it has no fixed meaning; the definition of the phrase has shifted with the political winds to suit the whims of those in power at any given time.

If you are interested in reading the rest, jump to @ page 105 in the Scribd version….

http://documents.scribd.com/ScribdViewer.swf?document_id=2887203&access_key=key-15h7erg6dvb9zcpjqut5&page=&version=1&auto_size=true&viewMode= ]]> https://techliberation.com/2008/08/28/is-the-public-interest-standard-really-a-standard/feed/ 21 12308 Joint FCC Filing on Internet Filtering Plan for AWS-3 Spectrum https://techliberation.com/2008/07/29/joint-fcc-filing-on-internet-filtering-plan-for-aws-3-spectrum/ https://techliberation.com/2008/07/29/joint-fcc-filing-on-internet-filtering-plan-for-aws-3-spectrum/#comments Tue, 29 Jul 2008 15:18:27 +0000 http://techliberation.com/?p=11437

This week I was pleased to join a diverse collection of think tanks and public interest groups in submitting joint comments to the FCC opposing the proposed content filtering mandate that would be part of a future AWS-3 auction. That’s the proposed auction that would create a “free” nationwide wireless broadband service. As part of the deal, the company would need to need to take steps to provide a “clean” Internet connection by filtering content. This joint filing points out why that is a bad idea:

  • the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge.
  • even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal Reno v. ACLU decision.
  • even if the Commission were to require filtering on an “opt out” or “opt in” basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government mandated “blacklist” of websites to be blocked.
  • would also violate the terms and intent of two federal statutes – 47 U.S.C. § 326 (which prohibits the Commission from “interfer[ing] with the right of free speech”) and 47 U.S.C. § 230 (which promotes user control over content and limits burdens on service providers).
  • would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced.
  • would also certainly lead to legal challenges that would delay the implementation of the proposed access service. The reason I believe this fight is so important is because, ultimately, it represents an effort by the FCC to begin treating wireless broadband more like broadcast spectrum. That is, regulators want to create the classic regulatory quid pro quo: We’ll rig the wireless allocation process to make it easy for you to get spectrum, and you’ll be a good little boy and clean up the Net for us! This is the game the FCC has been playing for 70 years in the broadcast television and radio licensing space. And not they want to extend that nonsense to wireless broadband. As Commander Jean-Luc Picard would say: “The line must be drawn here!” We don’t want the Internet regulated like broadcasting.

Many thanks to John Morris of CDT for coordinating this filing and asking me to sign on. The comments can be found on the CDT website, and I have also embedded them down below as a Scribd file. Also, Leslie Harris of CDT has a short editorial about the issue over at ABC News.com.

http://documents.scribd.com/ScribdViewer.swf?document_id=4222096&access_key=key-2kc7ofnoa85n2870jnsm&page=&version=1&auto_size=true ]]> https://techliberation.com/2008/07/29/joint-fcc-filing-on-internet-filtering-plan-for-aws-3-spectrum/feed/ 14 11437 Liberals Abandoning the First Amendment, Part 3: The Fox Case https://techliberation.com/2008/07/08/liberals-abandoning-the-first-amendment-part-3-the-fox-case/ https://techliberation.com/2008/07/08/liberals-abandoning-the-first-amendment-part-3-the-fox-case/#comments Tue, 08 Jul 2008 14:30:34 +0000 http://techliberation.com/?p=11050

Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past. But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets. Consider this filing submitted by several liberal activist groups like Free Press, New America Foundation, Consumer Federation of America, Consumers Union, Participatory Culture Foundation, Acorn Media Foundation, as well as a couple of academics, like Susan Crawford and Monroe Price. These are some of the leading lights of the Left on communications and media policy.

With the Fox case, we have, quite possibly, the one major chance in a generation to make profound statement about the role of the FCC in policing speech in society. And what do these leading intellectual lights of the Left do in their 42-page brief to the court? They relegate the First Amendment to the equivalent of a footnote in the matter. The First Amendment is barely even mentioned in this filing; it is an afterthought.

Instead, they make everything subservient to saving Red Lion and maintaining the FCC’s authority to comprehensively regulate media markets. Red Lion, you will recall, is the Supreme Court’s historic 1969 decision legitimizing the hideously misnamed “Fairness Doctrine.” Of course, it also serves as the foundation for just about every other sort of media regulation that the FCC enforces: i.e., ownership restrictions, educational TV mandates, advertising restrictions, political advertising mandates, must-carry rights, and so on. The lynchpin of the Red Lion decision is the scarcity doctrine. In essence, the court held that the supposed scarcity of media outlets (or at least broadcast spectrum licenses) somehow justified comprehensive regulation of the media marketplace.

Liberals have long been in love with Red Lion and continue to rely on the case in one filing after another before the FCC and the courts in support of their efforts to justify existing or proposed media regulations. Of course, in light of the explosion of media options and competition, Red Lion and the “scarcity doctrine” have become utterly intellectually bankrupt rationales for regulation. But that hasn’t stopped the Left from pinning all their regulatory hopes on the doctrine and attempting to breathe new life into it at every turn.

Even more troubling is the fact that their filing argues that the Internet is some how touched by Red Lion. “[Q]uestioning Red Lion,” they say in their brief, “could throw media, spectrum, and Internet policy into chaos.” (p. 15) Excuse me? The Internet will be thrown into chaos if Red Lion is altered or abandoned by the court in the Fox case? I wasn’t aware that Red Lion had suddenly empowered the FCC to regulate this abundant medium known as the Net!

I won’t belabor this point about the scarcity rationale being dead and Red Lion being bad law, instead I’ll just refer you to the last major thing that the FCC said on the matter. Three years ago, the FCC published a staff report by John Beresford, an attorney with the FCC’s Media Bureau, entitled, “The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed.” That title pretty much says it all, but Beresford went on to say: “[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid” and from there laid out a devastating case against Red Lion and the scarcity rationale. Calling the scarcity rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford went on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:

(1) the scarcity the government complained of was “largely the result of decisions by government, not an unavoidable fact of nature.” In other words, the government’s licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the scarcity doctrine, there certainly isn’t today in our world of information abundance.

Anyway, you get the point. Even people working at the FCC don’t take Red Lion or the scarcity rationale seriously anymore! Why then do these liberal academics who filed in the Fox case? They would be better served by shifting their regulatory rationales away from the hopelessly ambiguous and intellectually bankrupt “scarcity rationale” and toward an antitrust-based form of analysis based on market power considerations. But it is precisely because Red Lion provides them so much more regulatory wiggle room that they remain wedded to such a discredited theory. One wonders how long that farce will continue.

Regardless—and getting back to my main point here—it is absolutely shameless that these liberals would use this rare occasion to file a brief before the highest court in the land and not bother defending the First Amendment and free speech rights. We know we can’t trust the Right to defend the First Amendment, but the fact that the Left is abandoning it too is really troubling.

]]> https://techliberation.com/2008/07/08/liberals-abandoning-the-first-amendment-part-3-the-fox-case/feed/ 5 11050 “The End of Censorship” — The book I never finished https://techliberation.com/2008/01/22/%e2%80%9cthe-end-of-censorship%e2%80%9d-the-book-i-never-finished/ https://techliberation.com/2008/01/22/%e2%80%9cthe-end-of-censorship%e2%80%9d-the-book-i-never-finished/#comments Wed, 23 Jan 2008 03:14:54 +0000 http://techliberation.com/2008/01/22/%e2%80%9cthe-end-of-censorship%e2%80%9d-the-book-i-never-finished/

Back in 2005, I threw away a book I was writing. Well, I didn’t exactly toss it in a garbage can or take a match to the manuscript; I just abandoned the project to work on other things, including a different book and a big law review article. I’m still mad at myself for never finishing it up because I think it put forward a provocative thesis: Censorship is dead. Specifically, as I argued in the first lines of the book, “A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming.” Accordingly, the running title for the book was: “The End of Censorship?: The Future of Content Controls in a World of Media Convergence.”

Anyway, I recently unearthed an old draft of this discarded manuscript and thought I might as well at least throw the introduction online. In it, I outline my thesis and the “5 Reasons Content Controls Will Break Down.” I also highlight how governments will fight back and discuss what alternatives are out there to address concerns about objectionable content. Someone out there might be interested in all this even though much of what I say here is now widely accepted or been said better by others. I’ve stripped out all the footnotes and cut out significant sections to make what follows more readable. So, here it goes…

“The End of Censorship? The Future of Content Controls in a World of Media Convergence.”

Content regulation–at least as it has been traditionally defined and enforced in the United States–is doomed. A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming. Specifically, it is the distribution channel-based system of content regulation employed in the U.S. and many other nations that is breaking down. That is, the ability of governments to regulate speech and expression by regulating its distribution channel or provider (such as broadcasting), represents in increasingly ineffective and illogical method of policing content flows.

The demise of traditional content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.

For example, we know the old regulatory regime is in trouble when consumers can use a device such as the Sony PlayStation Portable not just to play games and watch movies, but also to surf the Internet, e-mail or instant message friends, download music and videos, and even watch live TV. Similarly, Apple’s wildly popular iPod, which can be used to enjoy music and video anywhere consumers wish, has spawned a whole new world of mobile media opportunities and imitators. And in late 2005, TiVo announced it would be making its popular video “space-shifting” services available through both iPods and PlayStation Portables, meaning that almost any piece of televised video content will also be accessible over those (and other) devices in the future.

And technologies like the PlayStation Portable, the iPod and TiVo are just the tip of the iceberg. Just as wireless technologies have revolutionized the telecommunications sector, in a few years, most consumers will own some sort of mobile media gadget (probably several) that enables “anywhere, anytime” media consumption. This book will document countless other technologies and services that are currently undermining traditional content control regimes.

Importantly, content controls can be broadly defined to not only include the regulation of “objectionable” content (whatever that might include), but also the promotion of so-called “public interest” content or other media quality objectives. Examples would include children’s television programming mandates, free airtime for politicians, “must-carry” mandates, and “PEG” (public, educational, and governmental) access requirements. Such content controls are also doomed. Whether government is regulating with the intention of repressing or promoting specific viewpoints or content it makes little difference; both types of controls are being rapidly undermined by new marketplace developments and realities.

These developments are the inevitable outgrowth of the relentless pace of technological and social change and that society will need to adapt to these changes very quickly because there is no reversing these trends. For millions of parents like me, this will mean we will need to find methods of countering the problems that technology has created in terms of offering us abundant and ubiquitous media options. Parents will need to harness other technologies and services to control their children’s access to objectionable programming or lead them to the sort of programming they want them to consume. While that sounds like a formidable challenge, the good news is that there is more enriching and educational fare available today than ever before, and more ways for parents to filter access to the objectionable content they do not want their children to see or hear. Admittedly, however, the challenge of controlling access to unwanted content will be great, and parents will have to be more vigilant than ever.

Many policymakers and pro-regulatory special interest groups will dwell on the types of content that they find distasteful and continue to advocate a generous role for government as protector of morality, taste and “quality” programming. But this is fool’s errand. In our modern world of media abundance, rapid proliferation of distribution outlets, the digitization of all information, and relentless technological change and convergence, there is simply no way that government can effectively control information and content flows absent extreme measures.

From Information Poverty to Information Abundance To understand why traditional content controls are doomed, it’s necessary to step back and take stock of just how far we’ve come in recent decades in terms of media and information diffusion.

[Note: At this point in the narrative, I spent a few pages illustrating exactly how much better off society is today than ever before in terms of the abundance of information and entertainment at our collective disposal. But then I pointed out that…]

Alas, life in the “Information Age” has its detractors. The funny thing about information and media is that the more you have, the more people find to complain about. Nowhere is this more clearly evident than in the debate over the regulation of “indecent” content on television, radio, cable or the Internet. This is not a new debate, of course. The impulse to control content is as old as the press or even writing itself. The first day someone put pen (or quill) to paper was likely also the first day someone proposed censoring the message that writer sought to convey.

In the wake of a handful of high-profile incidents on broadcast television and radio over the past few years, a significant new regulatory push has been underway in Congress and at the Federal Communications Commission (FCC). Critics aim to crack down on indecency on broadcast radio and TV. The regulation of “excessive violence” is also a commonly stated goal of these regulatory advocates. Such efforts to regulate violence in media are based on many of the same theories or arguments as indecency regulation.

Importantly, many of the latest regulatory proposals would expand media regulation in significant new ways, not only for over-the-air broadcast licensees, but also for subscription-based outlets such as cable and satellite networks. This would be the case even though recent First Amendment judicial decisions dealing with new media outlets, namely the Internet and video games, are pushing in the opposite direction. The courts have held that attempts to regulate content on the Internet, or violence in video games, are unconstitutional burdens on freedom of speech and expression.

The 5 Reasons Traditional Content Controls Will Break Down Thus, America’s media policy is now stuck in a jurisprudential Twilight Zone. Speakers using the Internet or print outlets (i.e., newspapers and magazines) are guaranteed the gold standard of First Amendment protection, while those using broadcast radio and television to speak are only accorded the equivalent of second-class free speech rights. Meanwhile, cable and satellite speakers are caught somewhere in the middle with the courts generally granting them more freedom than broadcasters, but not as much as speakers using the Internet or newspapers. And it remains to be seen how emerging media technologies and outlets will be classified.

As the authors of one popular communications law book note: “The central problem is that communications law has always been based on different rules for different media—different regulations, different jurisdictions, even… different levels of First Amendment protection. Unfortunately, this no longer reflects technological reality.” (Carter, Dee, and Zuckman, Mass Communications Law, 2000) Indeed, this current distribution channel-based legal arrangement is unjust, indefensible, and ultimately unsustainable for five reasons:

(1) Convergence: A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Media content and outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new media technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being “unbundled” from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to consume to the same piece of content via a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone or mobile media device, on a portable gaming system, or over the Internet. In this “multiplatform” environment, consumers can increasingly dictate when, where and how they consume media content. “For us, multiplatform is more than the buzzword of the day,” says MTV President Christina Norman. “It is the way this audience lives.” Thus, contrary to the famous assertion of media analyst Marshall McLuhan that “the medium is the message,” today the medium is just another medium or distribution path; it is the message (or content in general) that is now truly king.

Thus, convergence will make it increasingly complicated and intrusive for lawmakers to apply old media standards and regulations to newer technologies and outlets. “The phenomenon of convergence has… rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content,” argued Jeff Eisenach and Randolph May of the Progress & Freedom Foundation in 2000.

The following examples illustrate how convergence renders the old regime obsolete as Eisenach and May suggest. In March 2006, following an FCC decision to impose steep new indecency fines on certain broadcast television shows, the WB Network decided to self-censor several scenes from a new drama that was about to air on its broadcast television affiliates. The network was concerned that it might be subjected to fines for airing the new show without certain edits. But before they aired the edited pilot episode on their WB broadcast television outlets, the network decided to air the unedited version on their Internet website. According to the New York Times, “It [was] the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.”

But this won’t be the last time this happens in a world of proliferating media platforms and delivery options. Indeed, just a few months after WB took this step, CBS television network affiliates came under pressure from certain regulatory activist groups to self-censor or not air an award-winning documentary about the “9/11” terrorist attacks because it contained profanities uttered by firefighters or citizen under great duress. Several local CBS affiliates bowed to the pressure and decided not to air the documentary. But CBS Corp. responded by airing the entire unedited version of the documentary on its website so that consumers in areas where it had been blacked out could see it.

Opportunities for such cross-platform marketing are exploding. … [I then provided dozens of additional examples.]

In sum, because convergence is shattering the distribution-based business and regulatory distinctions of the past, it means that media regulation in general, and speech controls in particular, will be severely strained.

(2) Scale: Because technological and media convergence is now upon us, in the future, a regulatory attack on one type of media outlet or technology could be tantamount to an attack on all media. This is especially the case given the increasingly global scale of the Internet and modern media networks and digital communications technologies.

In the past, the reach of media was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity. While important cultural / language barriers remain, many traditional geographic and technological limitations are fading away. As New York Times columnist Thomas Friedman argues, the world is becoming more “flat” or interconnected.

Thus, the scale of modern digital media content and operations will greatly complicate government efforts to impose “community standards” on one type of content or distribution outlet given the borderless nature of most modern media. Nonetheless, lawmakers–local, national, and global–will almost certainly attempt to expand regulations (including content controls) to cover emerging media technologies and outlets as they become more popular. Lawmakers in the United States are already debating how to expand indecency controls to cable and satellite networks, for example. And policymakers in Europe, Canada and Australia are also grappling with this and proposing the expansion of traditional regulatory regimes to new technologies or providers.

(3) Volume: But as policymakers continue to push out the confines of traditional media / content regulation, the sheer volume of media activity that exists today will greatly complicate the task before them. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a blue ribbon panel assembled by the National Research Council reported in 2002: “The volume of information on the Internet is so large–and changes so rapidly–that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness.”

While it may have been possible to oversee a handful of TV and radio stations in each community or nation in the past, today’s electronic media universe is so diverse and enormous—and evolving so quickly—that content controls will gradually break down in light of the enforcement burden at hand. A few numbers regarding Internet growth and usage, in particular, can help put this “problem” into perspective:

[A half dozen factoids then followed documenting the growth of online activity.]

(4) User-Generated Content: Considering the relative youth of this new communications / entertainment medium, these are astonishing growth numbers. This explosive growth is a direct result of the seismic shifts underway in our new world of organic, bottom-up media creation—what Wired editor Chris Anderson refers to as “the Age of Peer Production”:

“The tools of production, from blogging to video-sharing, are fully democratized, and the engine for growth is the spare cycles, talent, and capacity of regular folks, who are, in the aggregate, creating a distributed labor force of unprecedented scale.”

In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or downloading will be become increasingly difficult to devise and enforce. …

[Still more examples followed that illustrated how this trend was also undermining content control efforts.]

(5) The First Amendment: Given the problems of convergence, scale, volume, and the rise of user-generated content, regulators might react by simply sticking to the regulation of licensed electronic media providers, namely, television and radio broadcasters. After all, lawmakers already have a great deal of leverage over those media outlets and they might hope that by regulating them alone, a message will be sent to other media providers regarding what is acceptable content.

But that is a false hope. Traditional “free, over-the-air” broadcasting represents a steadily shrinking portion of our modern media universe. In recent years, the hegemony of the “big 3” television networks and the powerful local radio broadcast stations has been greatly eroded. Indeed, broadcasters are now struggling to adapt and survive in a world of media abundance and intense competition. Consequently, if regulators simply continue to regulate licensed broadcasters alone, it will simply accelerate the decline of broadcasting relative to its many new competitors. Asymmetrical regulation will be the death warrant for free, over-the-air broadcasting.

Eventually, the very existence of this asymmetry will force a major Supreme Court showdown testing the legitimacy of the bedrock cases upon which America’s broadcast content control regime rests: Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). Red Lion held that broadcast television and radio could be regulated differently than traditional print outlets (newspapers and magazines) because broadcast outlets were more “scarce” than other media outlets and, therefore, required government licenses to operate. Consequently, speech controls were viewed as a natural outgrowth of government licensing and oversight responsibilities in the name of protecting “the public interest.” Pacifica held that broadcasters shouldn’t receive the same First Amendment protections as other media because broadcasting was more “pervasive” throughout society and also more “uniquely accessible” to children. To reiterate, these standards were only applied to broadcast radio and television, not print media and generally not cable or satellite.

There have always been serious intellectual deficiencies associated with the “scarcity” and “pervasiveness” rationales for America’s schizophrenic media policy. What is increasingly obvious to most observers, however, is that the Red Lion and Pacifica rationales for asymmetrical regulation will simply no longer work in the modern media environment. Red Lion’s “scarcity” rationale is now an absurd basis for regulation in light of the sheer volume of media at our disposal. And the problem with Pacifica’s “pervasiveness” standard as a regulatory rationale is that it proves too much; it could cover anything public officials deem to be widely available or “uniquely accessible” to children. (In terms of what children see or hear, is broadcasting really more pervasive than cable, cell phones, video games or the Internet today?) Moreover, although some lawmakers would like to make it so, the new regulatory calculus cannot magically become “popularity equals pervasiveness.” Merely because a given media outlet or technology gains more widespread use throughout society, it does not mean its First Amendment status should change. The courts will likely reject any effort by government to say that 51% market penetration results in diminished speech protection for a given media outlet or provider.

But one powerful rationale for the expansion of content controls remains: the “level playing field” argument. Many lawmakers, and potentially even some traditional broadcasters, will use “level playing field” arguments to justify the extension of the old regulatory regime to new media technologies–cable, satellite, cell phones, and the Internet–in the name of fairness. But, again, as these and other new technologies and outlets come to dominate America’s media landscape, lawmakers should reject the urge to impose old rules on new technologies and services. Already, the courts have firmly rejected the Communications Decency Act (CDA) of 1996 and subsequent efforts–both federal and state-based–to impose speech controls on the Net. As a result, the Internet now receives the same level of strict First Amendment scrutiny and protection as print outlets. In choosing how to level the regulatory playing field between print, the Net, cable, satellite, broadcasting and all other media, it should be done in the direction of greater freedom for all speakers, not less. Ironically, it was the FCC that most succinctly captured this principle when it decided to abandoned the so-called Fairness Doctrine in 1987:

[T]he role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. … First Amendment protections against content regulation should apply equally to the electronic and the printed press.

The FCC was right; the standard that governs print media should apply to all electronic / digital media as well. The fact that the Internet has already won significant judicial protection from legislative efforts to regulate online content indicates that the courts have already moved to adopt this position. It is increasingly unlikely that the courts will accept the extension of broadcast-era content regulations to new media outlets and technologies. The courts appear ready to apply stricter scrutiny to all speech controls in the future, especially since judges are not blind to the convergence and scale / volume problems outlined above. This is the “higher First Amendment standard” problem which all new content-related legislative and regulatory enactments will now face in America.

The Empire Strikes Back Governments won’t give up, of course. As legal, technological and cultural changes continue to erode the effectiveness of the distribution-based regulatory methods of the past, governments will search for new ways to continue to exert control over content flows. But, as previously mentioned, it will likely take extreme measures by government to accomplish this task in the future. Two approaches deserve close consideration, and they are outlined succinctly in a new book by Jack Goldsmith and Tim Wu entitled Who Controls the Internet: Illusions of a Borderless World.

Goldsmith and Wu are proponents of what David Post has referred to as the “unexceptionalist” school of thinking about Internet governance and media regulation. Unexceptionalists believe that the problems created by the rise of the Internet and new digital media outlets and technologies are really not all that different than the problems lawmakers had to deal with before when the telegraph, telephone and television first appeared. “Exceptionalists,” by contrast, believe that the Internet and the many other new media technologies and developments really are quite different than previous technologies and pose a more formidable challenge to traditional legal arrangements.

While unexceptionists like Goldsmith and Wu often concede that the Internet and new media technologies present unique challenges, they argue that domestic and international legal systems can adapt to accommodate local preferences and respect territorial regulations, including content controls. At root, their argument is that we should never underestimate the power of state coercion to essentially beat people, companies and technologies into submission. Using various coercive powers, the state can contain speech flows even in our new multimedia, multiplatform world, they say.

But the two primary approaches they identify to accomplish this task are riddled with problems:

The “Great Wall” Approach: One obvious approach to controlling content flows is for government to control the underlying “means of production” and information dissemination. In today’s Internet world, that means government would seek to control of the routers, servers, and other computing or networking devices that constitute the heart of modern information infrastructure. This is the approach that more repressive regimes like Saudi Arabia, China, North Korea and Iran have adopted to control “undesirable” information flows. Indeed, China’s highly restrictive system has been dubbed the “great firewall of China.”

But “great wall” regulatory solutions are almost completely untenable in more advanced economies since the information genie is already well out the bottle. In the United States and most European nations, for example, private ownership of means of information production is so diffuse and decentralized that it would be impossible for governments to gain control over the system and control information flows. Moreover, governments in democratic nations have a greater respect for the rule of law, property rights and various free speech values in more advance economies where the Internet has already taken root.

Thus, this solution is really only tenable in less developed economies that are just witnessing the sort of digital media renaissance we have seen in the U.S., Europe and Asia. Even in those countries that have adopted this approach, it is unlikely it is a workable solution well into the future. Networks expand. Technologies evolve. The “Net-izenry” (online population) grows. The scale and volume numbers cited above, while remarkable, only represent a trickle before the flood. Again, only 15 percent of the world’s population has found its way online so far. What happens when that number hits 25 percent, and then 50 and then 75+? And what happens as wireless and satellite-based technologies become even more advanced and every laptop and mobile media device on the planet offers wirelessly accessible Internet access? A recent story in The Washington Post noted how despite strict communications and media laws in Saudi Arabia—the country once sought to ban cell phone cameras—the youth of that country are finding ways around the restrictions:

“Cellphone technology is changing the way young people meet and date in the Kingdom of Saudi Arabia, one of the most insular, conservative and religiously strict societies in the world. Calls and texting—and more recently, Bluetooth—are breaking down age-old barriers and giving young men and women discreet new ways around the sentries of romance.”

The Washington Post now includes a section on its website called “Digital Revolution” that highlights stories “about high technology’s impact on politics, culture and society throughout the world.” And other tools of evasion are coming… [ I went on to describe some of them]

The “Deputize the Middleman” (Secondary Liability) Approach: A more realistic solution discussed by Goldsmith and Wu that could be tapped by governments (including those in advanced economies) would involve stringent liability schemes for major communications / Internet intermediaries.

[I never finished this section up, and that’s too bad because this is exactly where the debate over content controls stands today. But, I had outlined that…]

There are serious dangers with this approach as well:

  • over-reaching self-censorship
  • significant costs for intermediaries
  • creates incentive to move offshore or operate surreptitiously outside the confines of law using encryption, anonymizers, and host of other tools

[Note: My TLF colleague Jim Harper wrote an important essay on these issues: “Against ISP Liability,” Regulation, Spring 2005, pp. 30-33.]

The Challenge Ahead If the thesis set forth here is valid and the days of traditional content controls are truly numbered, what happens next? Specifically, if government restrictions become largely ineffective or constitutionally impermissible, will parents or others be left powerless to stop what some believe is an onslaught of objectionable material?

This is reasonable concern. Like most parents, there are some types of content that I do not want my children to see or hear, especially at a very young age. And access to such materials is growing increasingly easy as children begin using communications technologies at earlier ages. Meanwhile, children continue to grow increasing technology-savvy. Since the rise of the personal computing in the 1980s and the Internet in the 1990s, there has been a running joke about how kids have to teach their parents and even teachers how to use these new digital tools.

No doubt, there is a great deal of truth in that notion. But does that mean children will be left on their own and expected to raise themselves in cyberspace? Are we facing a sort of “Lord of the Flies” scenario in which there are no constraints on what our children can do and they are left to enact rules of the road for themselves?

This seems to be the fear many parents and policymakers have today when they express frustration about what their children can see and hear in our media-saturated culture. To some, information abundance is a curse instead of a blessing; a problem to be dealt with, possibly even through extreme government measures such as “great wall” solutions or harsh liability sanctions like Goldsmith and Wu suggest.

But, again, any effort to deal with the “problem” of information abundance must begin with a realization that there is no putting the genie back in the bottle. As China and other repressive regimes are finding out today, once a sophisticated information infrastructure is in place, it is extremely difficult to stifle political dissent or even less threatening types of unfavored speech and expression. For more liberal regimes with fewer restrictions on human expression, there will still be social standards or cultural norms that are challenged by this modern multimedia universe. Some regimes or cultures will decry hate speech online. Others will lament sacrilegious cartoons. And for many others it will be various forms of pornography that spark official condemnation. In each case, these modes of speech or expression—offensive as they may be at times—will be impossible to eradicate from our new digital Information Society. Absent extreme measures, aimed at hobbling the sophisticated communications infrastructure that undergirds it, there will simply be no way of suppressing the flow of bits in our new digital, borderless, multimedia, multiplatform world.

The challenge that lies ahead, then, is for media companies, private organizations, family groups, educators and others to work together to devise reasonably workable solutions to the problem of underage access to objectionable content.

[Actually, it was at this point that I abandoned this manuscript entirely and set off to write the booklet that would answer those questions and concerns. It resulted in “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” which I have discussed here many times before. In that report, I begin with the working assumption that content controls are in serious trouble and that parents and policy makers need to find constructive alternatives to traditional legal and regulatory tools. My book provides an exhaustive list of options and highlights the many tools and information that media companies and other organizations are providing parents to help them make media decisions for their families. However, I concluded my discarded manuscript by noting that…]

The traditional “mass media” era is coming to a close, however. An age of organic, bottom-up, collaborative, “we-dia” (We-Media) is now dawning. Who will play the “gatekeeper” role in this world of endless, instantaneous media creation? For example, in an online environment, parents have traditionally been concerned about what their children can download. Increasingly, however, it is what children can upload that is becoming a bigger problem. With the cost of computers, camcorders, digital cameras, cell phones, and Internet access all plummeting, the tools of information creation and dissemination are now within the reach of almost all citizens, including the youngest.

Clearly, this is not a problem that can be easily solved–if it can be solved at all–by public policy. In the end, for those parents who realize that information flows will be increasingly difficult to control, there is simply no substitute for talking to children in an open, loving and understanding fashion about the realities of this world, including the more distasteful bits.

[I had then planned to conclude the introductory chapter with a discussion of the importance of educational strategies, media literacy efforts, and parental empowerment tools and strategies that could help us address concerns about access to objectionable content as censorship efforts became increasingly less effective and largely faded away. Again, that’s when I diverted all my attention to detailing those things in my book on parental controls and online child protection. And so ends my story about the book I threw away!]

]]> https://techliberation.com/2008/01/22/%e2%80%9cthe-end-of-censorship%e2%80%9d-the-book-i-never-finished/feed/ 5 10310 transcript of Prof. Tribe’s speech on the First Amendment & technological change https://techliberation.com/2007/09/11/transcript-of-prof-tribes-speech-on-the-first-amendment-technological-change/ https://techliberation.com/2007/09/11/transcript-of-prof-tribes-speech-on-the-first-amendment-technological-change/#respond Tue, 11 Sep 2007 17:27:39 +0000 http://techliberation.com/2007/09/11/transcript-of-prof-tribes-speech-on-the-first-amendment-technological-change/

A few weeks ago, I outlined the amazing keynote address that Harvard University law professor Laurence H. Tribe delivered at PFF’s annual Aspen Summit. Now you can read it for yourself. PFF has just published the transcript of his speech, which was entitled, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism.”

Professor Tribe provides a 14-part indictment of new government proposals to regulate “excessively violent” content. But he also speaks more broadly about the importance of defending the First Amendment from attacks on many different platforms, and for many different types of content. Here’s one of my favorite passages from the concluding section of his remarks:

The broad lesson of this discussion of television violence is the centrality of the First Amendment’s opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.

Amen to that. And that, in a nutshell, describes what much of my research agenda at PFF has been focused on. It is a pleasure to add Prof. Tribe’s address to our growing body of research on the sanctity of freedom of speech and centrality of the First Amendment to our democratic republic as we continue “to wage that fight over and over and over.”

]]> https://techliberation.com/2007/09/11/transcript-of-prof-tribes-speech-on-the-first-amendment-technological-change/feed/ 0 9843 Who Killed TV’s “Family Hour”? https://techliberation.com/2007/09/07/who-killed-tvs-family-hour/ https://techliberation.com/2007/09/07/who-killed-tvs-family-hour/#comments Fri, 07 Sep 2007 18:40:51 +0000 http://techliberation.com/2007/09/07/who-killed-tvs-family-hour/

The Parents Television Council has a new report out this week about the supposed decline of the TV “Family Hour.” The City Journal has just posted my response to that PTC report here. It begins as follows…

Who Killed TV’s “Family Hour”? It’s not who you think. by Adam D. Thierer 7 September 2007 The nonprofit Parents Television Council (PTC) released a report this week lamenting the supposed death of broadcast television’s “family hour.” Though neither the Federal Communications Commission nor Congress ever mandated it, 8 to 9 PM Monday through Saturday (Eastern time), and 7 to 9 PM on Sunday, have traditionally been devoted to family-friendly programming. But the PTC’s new report claims that these blocks of time are now “no place for children,” because “corporate interests have hijacked the family hour” and “have pushed more and more adult-oriented programming to the early hours of the evening.” One might respond to this claim by questioning the PTC’s methodology, particularly its definitions of foul language. Simon Vozick-Levinson of Entertainment Weekly’s “PopWatch Blog” takes this approach, accusing the PTC of “cooking the numbers” to suit its cultural agenda. But I don’t want to engage in methodological nit-picking, since it quickly devolves into a subjective squabble about acceptable language and appropriate programming. Instead, I want to point out the fundamental flaw in the report’s premise. The family hour may well be dead—but parents, not broadcasters, were the ones who killed it.

… read the rest at the City Journal’s website.

]]> https://techliberation.com/2007/09/07/who-killed-tvs-family-hour/feed/ 4 9829 PBS to self-censor WWII documentary to appease FCC https://techliberation.com/2007/08/31/pbs-to-self-censor-wwii-documentary-to-appease-fcc/ https://techliberation.com/2007/08/31/pbs-to-self-censor-wwii-documentary-to-appease-fcc/#respond Fri, 31 Aug 2007 20:08:11 +0000 http://techliberation.com/2007/08/31/pbs-to-self-censor-wwii-documentary-to-appease-fcc/

I’ve written much about the potential “chilling effect” associated with over-zealous FCC regulation of speech. Some people doubt that the FCC’s regulatory wrath is really so severe that media operators will censor important programs for fear of being fined afterward. But we know that that is exactly what happened with a 9/11 documentary last year when CBS decided to censor the remarks of firefighters under duress. Imagine that, firefighters were swearing as the disaster unfolded! But apparently we need to have history whitewashed for our benefit. Absurd.

And now it’s happening again.

PBS just announced that Ken Burns’s upcoming documentary about WWII (“The War”) will now be censored during certain broadcasts. According to this article by Paul Fahri in today’s Washington Post:

[public television] stations are concerned that four words of profanity in the 14 1/2 -hour documentary could subject them to hefty indecency fines from the Federal Communications Commission. Their worries have prompted Arlington-based PBS to take the unprecedented step of distributing two versions of “The War” for broadcast next month: Burns’s original film and an FCC-friendly version from which the profanity has been removed.

The comments of these two PBS officials are particularly telling:

“It’s the world we live in right now,” said Joe Bruns, WETA’s chief operating officer. “My own view is that with the landscape of a 14-hour film about World War II, and given the overall obscenity of war, four words are not particularly shocking — especially given the fact that these are words used routinely at that time. But [nowadays], we have to exercise an abundance of caution.”

and

“The core problem is, we don’t really know what the FCC will do with a complaint because the guidelines aren’t clear,” PBS’s chief content officer, John Boland, said yesterday.

That’s because the FCC reserves the right to fine stations $325,000 if they broadcast something “indecent” between 6 a.m. and 10 p.m. But the FCC refuses to tell anyone beforehand whether a particular use of a particular profanity is “indecent” or not. If you think that reeks of arbitrary, unaccountable government, you are right. And yet this is the law of the land.

And what is particularly absurd about this case is that this documentary will also contain gritty war footage and plenty of carnage. That’s what happens in war, after all. But what our government seeks to protect us (or our children) from is a few dirty words that actual soldiers utter about the grim realities of war. Absolutely absurd.

]]> https://techliberation.com/2007/08/31/pbs-to-self-censor-wwii-documentary-to-appease-fcc/feed/ 0 9803 law review article: “Why Regulate Broadcasting?” https://techliberation.com/2007/07/02/law-review-article-why-regulate-broadcasting/ https://techliberation.com/2007/07/02/law-review-article-why-regulate-broadcasting/#comments Mon, 02 Jul 2007 14:43:21 +0000 http://techliberation.com/2007/07/02/law-review-article-why-regulate-broadcasting/

Many lawmakers and regulators are currently proposing the expansion of broadcast industry regulation. For example, fines have been greatly increased for “indecent” programming on broadcast television and radio, and efforts are underway to extend indecency regulations to cover cable and satellite television. Meanwhile, some policymakers are advocating government regulation of “excessively violent” programming on both broadcast and pay TV. In my latest law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” I hope to show why these efforts are seriously misguided, likely unworkable, and almost certainly completely unconstitutional.

This 52-page article appears in the latest volume of the Catholic University Law School’s CommLaw Conspectus. The article can be found online here.

In this essay, I make the case that the radically unfair system of modern broadcast industry regulation must be completely abolished. “If America is to have a consistent First Amendment in the Information Age,” I argue, “efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I go on to make the case against all the traditional broadcast industry regulatory rationales and conclude that: “the traditional rationales for asymmetrical regulation of broadcasting — scarcity, pervasiveness, and the public interest — either no longer make sense or are increasingly impractical to enforce in an age of technological convergence and media abundance. Instead of resisting the inexorable movement toward media parity and a consistent First Amendment standard for the Information Age, policymakers should embrace these changes and focus on responding to the problem of objectionable content through education and empowerment-based strategies that enable families to craft their own household media standards.”

http://documents.scribd.com/ScribdViewer.swf?document_id=2887127&access_key=key-17dpa2kpdbyetd67b4f5&page=&version=1&auto_size=true
Read this document on Scribd: Why Regulate Broadcasting (Thierer-PFF)
]]> https://techliberation.com/2007/07/02/law-review-article-why-regulate-broadcasting/feed/ 2 9602 Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing https://techliberation.com/2007/06/26/sen-rockefeller-gives-up-on-parenting-at-senate-violence-hearing/ https://techliberation.com/2007/06/26/sen-rockefeller-gives-up-on-parenting-at-senate-violence-hearing/#comments Wed, 27 Jun 2007 02:13:55 +0000 http://techliberation.com/2007/06/26/sen-rockefeller-gives-up-on-parenting-at-senate-violence-hearing/

Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”

Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”

Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.

But what Rockefeller said next was really telling. After claiming that Americans don’t want more tools to handle this on their own, Rockefeller launched into full-blown attack mode against parents and the act of parenting: “There are many parents who cannot make these things work, or they are just not there [in the home]… Americans don’t know technology well,” he said. And, most shockingly, Rockefeller concluded that, “Unless you can show that parental responsibility works, I think we have to try something else.”

I don’t know about you, but there’s something deeply insulting and troubling about that statement. As I mentioned above, Sen. Rockefeller suggested that industry is “blaming parents,” but it sounds to me like he’s the one blaming them and actually going further by accusing them of not being able to do their jobs.

Regardless, what are we to make of Rockefeller’s other contention that “Parents do not want more tools,” he argued, “they want the content off the air.” There are three problems with this argument.

First, as I discussed in great detail in this essay just yesterday, many recent polls confirm what we already know to be true: Parents are parenting. They are learning to cope with new media realities and adapt to them to make sure they can monitor and control their children’s media experiences. For example, the TV Watch poll released just this week revealed that 73 percent of parents monitor what their children watch, including 87 percent of parents whose children are ages 0-10. Also, 86 percent of parents believe that more parental involvement is the best way to keep kids from seeing what they shouldn’t see on television. Those results seem to strongly contradict Sen. Rockefeller’s contention that parental responsibility doesn’t work.

Second, we know that it cannot possibly be the case, as the Senator suggests, that all parents “just want the content off the air.” After all, I’m a parent of two young kids and some of the things that Sen. Rockefeller wants censored are my favorite shows and they are among the most popular shows on television today. (ex: CSI, The Shield, Rescue Me). Tens of millions of American parents like my wife and me tune into these shows each week and enjoy them. Are they fit for kids? Of course not, and like most other parents, my wife and I take steps to ensure our kids cannot watch them. But I think the millions of American parents who enjoy those programs would be deeply insulted by Senator Rockefeller’s suggestion that we all “just want the content off the air.” That’s a decision for us to make for ourselves, Senator.

Finally, not every home in America has kids in residence but the Senator wants to impose regulations that would treat everyone as if they were children. The majority of U.S. households, in fact, are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18. Under Sen. Rockefeller’s logic, however, we should be treating all homes as if children were present and regulating television so that it is only fit for a child. I don’t know about the rest of you parents out there, but I can’t live on just Sesame Street and Mr. Rogers alone!

Sen. Rockefeller is certainly free to get on his moral high-horse and preach to us about his vision for television: highly sanitized and apparently full of only documentaries and nature programs (just make sure none of them are about war or animals fighting each other to the death!) But it is quite another thing to mandate that vision from above using the heavy hand of government regulation as the Senator is threatening.

If the Senator wants to take a more constructive (and constitutional) approach, he might want to consider doing more to help educate parents about the many excellent parental control tools at their disposal. (Hey Senator.. send them my book! It has over 100 pages of parental control tools, tips and methods to help them.) Heck, if he doesn’t think that’s enough, then he can propose government subsidies for TiVos, personal video recorders, DVD players and VCRs so that parents can perfectly tailor TV programming to their own values!

But Senator, don’t you dare suggest that all America parents are incompetent or that we all want media censored to be in line with your values. That is deeply insulting and blatantly un-American.

]]> https://techliberation.com/2007/06/26/sen-rockefeller-gives-up-on-parenting-at-senate-violence-hearing/feed/ 8 9586 testimony at House hearing on “The Images Kids See on the Screen” https://techliberation.com/2007/06/22/testimony-at-house-hearing-on-the-images-kids-see-on-the-screen/ https://techliberation.com/2007/06/22/testimony-at-house-hearing-on-the-images-kids-see-on-the-screen/#respond Fri, 22 Jun 2007 12:14:38 +0000 http://techliberation.com/2007/06/22/testimony-at-house-hearing-on-the-images-kids-see-on-the-screen/

I am testifying today at 10:00 in the House Energy & Commerce Committee (Telecom & Internet subcommittee) at a hearing on “The Images Kids See on the Screen.” The purpose of the hearing is to examine the negative things that children may be exposed to on various screens (TV violence, product placement, fatty foods, smoking, etc.) and what should be done about it. My prepared remarks are attached below.

Testimony of Adam D. Thierer Senior Fellow and Director of the Center for Digital Media Freedom The Progress & Freedom Foundation June 22, 2007

Mr. Chairman and members of the Committee, thank you for inviting me here today and giving me the opportunity to testify. My name is Adam Thierer and I am a senior fellow with the Progress & Freedom Foundation (PFF) where I serve as director of PFF’s Center for Digital Media Freedom.

This hearing is particularly timely for me because this week PFF released a new special report that I spent the last two years compiling entitled, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” The booklet provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. (Incidentally, this booklet can be downloaded free-of-charge at www.pff.org/parentalcontrols, and I plan on making frequent updates to the report and re-posting the document online as new information comes to my attention).

As I note in my book, we live in an “always-on,” interactive, multimedia world. Parents need to be prepared to deal with media on multiple platforms, screens, and devices. While this can be a formidable challenge, luckily, there has never been a time when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms, or all the screens our children might view.

In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents like me have myriad tools and methods to restrict or tailor media content to their own household tastes and values. I could spend all my time here today merely discussing the restrictive tools on the market that parents can and do use to block or curtail media. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.

But while those restrictive tools are important, they are only part of the parental control story. Enabling or tailoring tools are what makes today’s parental control market so exciting. By enabling or tailoring tools I mean any tool or method that a parent might use to enable their families to see, hear, or consume content they would regard as more appropriate, ethical, or enriching.

For example, for televised media, VCRs, DVD players, and personal video recorders have emerged as important parental control devices. These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when and where it will be viewed. Pay-per-view options also help parents better tailor viewing choices for their kids. And don’t forget about the huge and growing market for educational DVDs, video tapes and computer software.

Speaking of computers and the Internet, parents can now tailor their children’s online activities in similar ways. In my new book, I document dozens of kid-friendly search engines and Internet portals that are essentially online “walled gardens” filled with pre-screened content and safe chat areas.

And even in the world of mobile media, new wireless handsets and services offer parents the ability to not only monitor the content their child might try to access, but to also establish pre-approved calling lists and tailor the communications experience to make it safe enough for even very young kids.

Also, it is vital that we not overlook the importance of informal household media rules in this discussion. Oftentimes, debates about inappropriate content get so caught up with disputes about technical controls, ratings or even regulation that we forget that parents often view all these things merely as backup plans. In my book, I identify four categories of household media rules that surveys show almost all parents use some combination of to control their children’s media consumption. These household media rules include:

(1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).

I don’t have the time here to run through all the possible examples, but certainly most of us are familiar with widely used household media rules like, “No watching TV or playing games until your homework is done,” or “You can’t watch that movie until you complete your chores.” Such household media rules can actually be more effective in controlling children’s media habits than technical controls. But debates about parental controls and media policy treat these household media rules almost as an afterthought, if they are mentioned at all. It’s time we start talking about them.

Finally, let’s not forget about the ultimate parental control tool: the “power of the purse.” In most cases, when kids want to consume a certain type of media—or even consume something they see advertised in the media—they need money to do so. Televisions, movies, video games, cell phones, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask. And, although at times it may be difficult, we all have the power to say “No.” That is the ultimate way to control the images our kids see on the screen.

Thank you again for inviting me today.

Attachments:

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