Lessig’s Herculean Holiday Present: Reboot the FCC

1990.05.0243.jpeg Here’s a good test for the new U.S. Executive: to recognize that steady pragmatism means radical change, starting with the FCC:
The solution here is not tinkering. You can’t fix DNA. You have to bury it. President Obama should get Congress to shut down the FCC and similar vestigial regulators, which put stability and special interests above the public good. In their place, Congress should create something we could call the Innovation Environment Protection Agency (iEPA), charged with a simple founding mission: “minimal intervention to maximize innovation.” The iEPA’s core purpose would be to protect innovation from its two historical enemies—excessive government favors, and excessive private monopoly power.

Reboot the FCC, We’ll stifle the Skypes and YouTubes of the future if we don’t demolish the regulators that oversee our digital pipelines. By Lawrence Lessig, Newsweek Web Exclusive, 23 Dec 2008

Lessig gets the connection with his old topic of intellectual property and copyright. Those are monopolies granted by the federal government, and they have been abused by the monopoly holders just like the holders of communication monopolies:
The problem is that the government has never given a thought to when these monopolies help, and when they’re merely handouts to companies with high-powered lobbyists. The iEPA’s first task would thus be to reverse the unrestrained growth of these monopolies. For example, much of the wireless spectrum has been auctioned off to telecom monopolies, on the assumption that only by granting a monopoly could companies be encouraged to undertake the expensive task of building a network of cell towers or broadcasting stations. The iEPA would test this assumption, and essentially ask the question: do these monopolies do more harm than good? With a strong agency head, and a staff absolutely barred from industry ties, the iEPA could avoid the culture of favoritism that’s come to define the FCC. And if it became credible in its monopoly-checking role, the agency could eventually apply this expertise to the area of patents and copyrights, guiding Congress’s policymaking in these special-interest hornet nests.
So the First Labor of Lessig would be to limit monopolies, and presumably (although he doesn’t quite come out and say it) revoke some that have already been granted.

The Second Labor of Lessig would be to police the monopolies that are granted:

The iEPA’s second task should be to assure that the nation’s basic communications infrastructure spectrum— the wires, cables and cellular towers that serve as the highways of the information economy—remain open to new innovation, no matter who owns them. For example, “network neutrality” rules, when done right, aim simply to keep companies like Comcast and Verizon from skewing the rules in favor of or against certain types of content and services that run over their networks. The investors behind the next Skype or Amazon need to be sure that their hard work won’t be thwarted by an arbitrary decision on the part of one of the gatekeepers of the Net. Such regulation need not, in my view, go as far as some Democrats have demanded. It need not put extreme limits on what the Verizons of the world can do with their network—they did, after all, build it in the first place—but no doubt a minimal set of rules is necessary to make sure that the Net continues to be a crucial platform for economic growth.
I think Lessig concedes too much here with the part about “some Democrats have demanded.” If he’s going to claim that, he should name the Democrats and link to their demands. And where’s the other side, as in the many demands by many Republicans to have no regulation? (Except when it serves their monopoly-building purposes.)

However, I think Lessig correctly identifies the right twin goals: grant only minimal monopolies, and legislate only minimal ground rules.

Like Hercules, I think Lessig will discover he has more than two labors to accomplish. For example:

  1. Limit monopolies. Laudable goal!
  2. Police those monopolies. Another good goal. But how?
  3. How do we keep an iEPA from being captured by those whom it regulates? The existing FCC was supposed to be immune from that because its commission is bipartisan, and so was the EPA, which recent stories indicate has been massively captured by polluting industries. It’s all very well to say:
    With a strong agency head, and a staff absolutely barred from industry ties,
    But the current FCC has a strong agency head, and it’s not staff ties that are causing the problem, so that’s no solution.
  4. How do we define what is too much monopoly? There are supposedly metrics for that already known, but the current FCC simply ignores them.
  5. How do we define
    “a minimal set of rules … necessary to make sure that the Net continues to be a crucial platform for economic growth.
    Note that in his own article Lessig has succumbed to semantic drift. He starts out talking about innovation but here he’s defining rules in terms of “economic growth”, just like the existing duopoly. What do they want innovation for when they have monopolies that can lock the customer in to old technologies? They should want innovation because their existing approach is fast making the country fall behind the rest of the world and soon will make the duopoly itself easy prey for more innovative ISPs from other countries, but focus on next quarter’s profits doesn’t permit looking that far ahead.
  6. How do we get enough data collected and published so that independent third parties, independent both of the government and of the regulated industries, can determine whether the above goals have been met?
  7. How does iEPA negotiate this minefield:
    it might encourage the government to spend more on public communications infrastructure, for example in the rural areas which private companies often ignore.
    The State of Texas tried that with its TIF project, which collected about $200 million per year in a 1% tax on telecommunications companies and spent it on rural school and library Internet projects, intending to produce viable rural networking. At the end, the number of such projects that had sustainable business plans was: zero (0). Where’s Sharon Strover when you need her? See above about data collection and publication by independent third parties; if Congress is going to fund an iEPA, it needs to fund academic researchers and commercial metric companies to act as watchdogs on it. Congress itself can’t do that; it doesn’t have the expertise.
  8. Speaking of which, while Congress is at it, why not revive the Office of Technology Assessment (OTA)? Newt Gingrich who nuked it is long gone from Congress, and Obama says he wants to emphasize science. Why not revive OTA and have it, using a wide range of outside experts, recommend appropriate organizations for such iEPA oversight? Have the National Science Foundation (NSF) get in on that act, too.
Larry Lessig may not look like Hercules, but he’s identified some Herculean labors. Now I know Lessig called out Obama and Congress for this task, but Lessig himself is a well-known advisor to Obama, and for his proposal to work it will need someone steering it who deeply understands the connection of intellectual property, monopoly, regulatory capture, and how that relates to the Internet. Probably nobody understands that more deeply than Larry Lessig.

Obama himself has at least ten big labors to perform. One could say reforming the FCC is merely one labor, such as for example slaying the Lernean Hydra (pictured above). Yet that hydra had twelve heads, each immortal. Seems about as easy as reforming the FCC. Good luck, Hercules Lessig! We’re rooting for you.