Blow up the FCC (or so was this titled when I submitted it in October)

Posted on December 23, 2008 by Lessig

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15 Responses to Blow up the FCC (or so was this titled when I submitted it in October)

  1. Steve Kinsey says:
    December 23, 2008 at 9:59 pm

    I completely agree with you Larry! We need to aggressively downsize Washington, limit the role of government and its interference into our lives and free markets, and massively reduce regulation across the board. Hopefully, your efforts to reform government will make a mighty stand against Obama and prevent his administration and the Democratic Congress from further interfering with progress.

  2. Dan says:
    December 23, 2008 at 10:05 pm

    Larry,

    Walking the tightrope of regulation/deregulation is always a fine line. And nobody can deny that FCC has been a huge target of industry capture along the way, especially in recent years under the GOP leadership. Whatever happens moving forward, this must be fixed (in the corrective sense, rather than the Chicago-machine sense).

    However, I wonder if the tone of this piece might already be slightly out of date, given the re-regulatory tenor of the times following the financial industry collapse which seems fairly obviously due to an excess of deregulation.

    I’m glad you emphasize the opposition of market power (I assume that means that not only would you approve of well-designed net neutrality regulation, but especially the open-access rules that for a while protected some degree of CLEC competition in the telecom markets in the past, and without which the telecom market suffered much reduced competition as Pa Bell increasingly reformed itself out of the fragments of Ma Bell).

    The one point you breeze past that I think may be the most difficult balance to achieve (and the incoming admin has been grappling with this tremendously in its cabinet appointments) is when you advocate “a staff absolutely barred from industry ties.” The conundrum here is that most experts have industry ties of some sort of another, because that expertise is developed to a great degree under industry employment.

    This is not to say that it is impossible to develop rules to effectively contain the money influence (the incoming admin has been working very hard to find a workable balance), but when you use words like “absolutely” it tends to paint you as an extremist, with the concomitant assumption that one is more dogmatic than pragmatic about one’s ideology. The ideology is not at issue (everyone wants government free of concentrated money influences), but how one goes about devising a solution is important.

    I think the point that will strike home with the greatest range of audience is not “less regulation” but “smarter and more broadly accountable regulation.” It is not the size of government (or amount of regulation) per se that is at issue, but rather the focus and control (and transparency) of government. More than that, it is the obsolescence of regulation that it the hardest to deal with, when regulation made sense in the past under older technological circumstances but becomes increasingly obsolete in the face of new technologies.

    Under old methods of analog EM transmission, there was indeed a scarcity of spectrum that made spectrum regulation make real sense. Perhaps under newer digital transmission protocols that scarcity becomes anachronistic. This is the sort of development that cannot be anticipated, and that causes the greatest difficulties for changing regulation, precisely because of vested interests for propagating vestigial regulation that has flipped from productive to counterproductive.

    I don’t have the silver bullet answer for you, but I wish you would think in these terms, because this is the answer we desperately need in a technologically fast-changing democracy.

    With folks like Susan Crawford and Ken Werbach advising the incoming admin on FCC, I think we have people who are both knowledgeable and have their hearts in the right place. They are about as close as one will come to experts without industry ties (they are professional observers of the industry, with an ideology for protecting the general public interest).

    In the current Blago scandal, people who are not from Chicago can get a better sense of why all those UofC economists are so reflexively abhorrent of government, but I wonder, is this just a Chicago thing at the end of the day?

    Seems to me the excesses of deregulation allow abuse just as surely as excesses of regulation. Shouldn’t we be looking for the happy medium here?

    Optimalism, not maximalism, not minimalism.

    You’ve expressed that sentiment in the context of copyright, in the past. Seems appropriate here too.

  3. Pablo Manriquez says:
    December 24, 2008 at 12:22 am

    How on earth did they get from “Blow Up the FCC” to “Reboot the FCC”?

  4. Joe Murray says:
    December 24, 2008 at 10:58 am

    I just came from Newsweek’s article and I am glad to see the editorial change of title. Blowing up seemed a bit drastic. On the other hand, every system requires an occasional reset or reboot.

    The FCC in my experience as a license holder was primarily a bunch of engineers and “geeks” who understood the importance of quality standards in the design and manufacture of communication equipment. The proper use of this equipment required standards set for operators as well. How would you address these FCC area?

  5. Serge says:
    December 24, 2008 at 8:25 pm

    Pablo — simple. The FCC is a regulator. Lessig calls for a super-regulator. “Reboot” because the idea is to create a whole new regulator. For what it’s worth, I disagree strongly. When things are broken, you fix them.

  6. M. David Peterson says:
    December 24, 2008 at 8:38 pm

    FWIW, while the title of the piece is listed as “Reboot the FCC”, they use “Lessig: It’s Time to Demolish the FCC” in the sidebar link. Screenshot: (right hand column, #3 on the Top Ten, Technology/Business list) http://mdavid.name/ItsTimeToDemolishTheFCC.png

    @Serge,

    >> When things are broken, you fix them.

    Sometimes things are too broken to be fixed. Similar to an insurance claims agent evaluating a claim, there comes a point where you have to decide if the cost of fixing something is greater than cost of replacing it.

    The cost to fix the FCC /far/ exceeds the cost of replacing it. The FCC is totaled. It’s time to cut our losses and start over.

  7. Dan says:
    December 24, 2008 at 11:44 pm

    Realistically, it would take a lot to junk the FCC (rewriting the Communications Act in comprehensive depth), and until Change Congress builds up a little more momentum, can we yet trust Congress to create the iEPA properly, yet? I doubt it. Besides, they won’t have the time to devote to doing it right, for at least a couple years, as they deal with the economic recovery.

    I think one can realistically assume the FCC is not going away any time soon. Let not the perfect be the enemy of the good. If we can improve the FCC at this point, we should focus on the possible.

    In an ideal world, maybe starting from scratch would be a good idea (and we should have a robust debate about what the iEPA should do, as part of the process). But we don’t live in an ideal world.

    I respect Larry’s motives here, but I can’t see any realistic path to an iEPA in the remotely foreseeable future. Let’s fix what we can with the FCC while we are stuck with it.

    Some ideas: (1) outlaw the revolving door in order to ameliorate the most egregious effects of industry ties, (2) look for ways to build planned obsolescence into all regulation moving forward (idea: require explicit statement of the causal factors driving regulation, and require explicit independent testing of such factors periodically), (3) shore up the public input procedures in the policy-making process, rather than undermining them, and mandate greater transparency in the policy formulation process thereafter.

    And most immediately: pick a new Chair (and appoint whatever new commissioners need to be appointed) who put the public interest first in terms of priorities. (Keep Copps and Adelstein, they’ve been fighting the good fight for years now.)

  8. Alan Thiesen says:
    December 26, 2008 at 12:54 am

    Here is a thoughtful rebuttal by Harold Feld: http://www.wetmachine.com/totsf/item/1423

  9. Micheal says:
    April 8, 2013 at 8:53 am

    How on earth did they get from “Blow Up the FCC” to “Reboot the FCC”?

  10. Canlı tv says:
    April 8, 2013 at 8:56 am

    I completely agree with you Larry! We need to aggressively downsize Washington, limit the role of government and its interference into our lives and free markets, and massively reduce regulation across the board. Hopefully, your efforts to reform government will make a mighty stand against Obama and prevent his administration and the Democratic Congress from further interfering with progress.

  11. Güncelnet says:
    April 8, 2013 at 8:57 am

    Pablo — simple. The FCC is a regulator. Lessig calls for a super-regulator. “Reboot” because the idea is to create a whole new regulator. For what it’s worth, I disagree strongly. When things are broken, you fix them.

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    February 6, 2019 at 1:28 am

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