| On April 12, 2011, the Free State Foundation held a lunch seminar entitled "Regulatory Reform at the FCC: Why Not Now?" The seminar's purpose was to explore issues relating to regulatory reform and institutional change at the Federal Communications Commission. FSF is now releasing a transcript of the panel discussion. The panel followed a very substantive opening keynote by Congressman Cliff Stearns, Chairman of the House Commerce Committee's Subcommittee on Oversight and Investigations. The panel discussion was moderated by RANDOLPH MAY, President of The Free State Foundation. The panel consisted of the following key FCC, think tank, and industry experts offering their views on FCC reform: - JAMES ASSEY, Executive Vice President, National Cable & Telecommunications Association
- STEVE LARGENT, President & CEO, CTIA-The Wireless Association
- EDWARD LAZARUS, Chief of Staff, FCC
- WALTER MCCORMICK, President and CEO, USTelecom
- MICHAEL WEINBERG, Staff Attorney, Public Knowledge
In light of the current heightened interest in Congress, the Executive Branch, and elsewhere concerning the topic of regulatory reform at the FCC, the panel's discussion, which covered a variety of topics, is particularly timely and instructive. Of course, the transcript should be read in its entirety for an appreciation of all of the views of each panelist. Nevertheless, immediately below are selected representative excerpts in the order of the panelists' presentations at the April 12 program. These excerpts provide an indication of the various perspectives presented at the seminar: JAMES ASSEY: "[I]t's important that we from the outside recognize that regulatory reform is really not a criticism of this agency, any previous agency, or any non-communications agency. But it really stands as an opportunity to recognize that the world that we live in is very different from the world that was created when various regulations, or in many cases the statutes themselves were enacted...And in many ways, regulatory reform is a celebration of the fact that we no longer have to rely on the government to set norms, because the marketplace and social norms have graduated to the point in which they are able to guide the marketplace in a way that maximizes consumers' benefits." "Particularly important in the [National Broadband] Plan was the emphasis on how critical private capital was going to be to achieving our goals, and a recognition that we were at a time where command-and-control regulation really needs to recede from the foreground into the background, so that we could unleash and continue unleashing the dynamic investment that has made such a difference already, and will continue to do so in the future." "[I]t's important to have a strong regulatory screen that counsels against regulatory intervention. Particularly where we see areas of rapid development in the marketplace, we need to be very careful before we decide to jump in because of the costs that are imposed by false positives and the fact that the marketplace often will sort stuff out. And in the lumpiness and bumpiness of progress and innovation, there are tremendous consumer benefits that we don't want to stall." "For some reason I think we have focused a lot on outdated regulations or statutory provisions in Title II. And I think that that is fair...But to the extent that we have a tool, something that is a little bit more incremental in the ability to remove statutory obligations or regulations, it makes little sense to me that it be restricted to one particular type of service or another...We have a number of provisions in Title VI of the Act, whether it's leased access or PEG obligations, that date back well before the Internet was just a science project...So we have a chance, should Congress either want to address that directly, or through insuring that the tools that are available through the forbearance process, to clarify that we really shouldn't pick and choose between services when we're talking about regulations." STEVE LARGENT "Specifically, the Executive Order in relevant part requires each agency to -- and I quote -- 'propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs, recognizing that some benefits and costs are difficult to quantify' and 'tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the cost of cumulative regulations.' This is exactly the right approach. It is one that will allow private companies, like those in the competitive wireless industry, to focus on innovating and developing new products and services for consumers. We also strongly support Chairman Genachowski's directive to the Commission to follow the executive order. We applaud this choice." "[W]e believe the Commission has initiated several proceedings, including the bill shock proceeding, the transparency requirements of the net neutrality item, and a few other areas, that could cause harm. And we're working with the Commission to address these potential harms." "[C]urrent rules limit the use of spectrum in the broadcast television bands to provide over-the-air broadcast television services. This despite the overwhelming demand for additional spectrum for mobile broadband services, and dwindling consumer demand for broadcast television services...That is why the FCC's effort to create a more flexible framework that could ultimately accommodate a reallocation of portions of the underutilized TV bands is so important...Government has a key role in coordinating spectrum rights. But the wireless industry also has a tremendous record of investing, innovating, and meeting consumer demand...It has delivered unparalleled benefits to consumers and businesses across the country, with consistently lower prices and new and improved services." "The Sunshine Act is something that the FCC needs to look at. It goes to the kind of Commissioner that you would see nominated to those positions, if you were able to meet with your fellow Commissioners, even Commissioners that were appointed under a Republican or Democratic presidency...And if it doesn't work, then they don't have to meet. But if it does work, they had the opportunity to meet. Commissioner Copps' idea of having a bipartisan group that's meeting is a good thing. You'd find Commissioners that were more in tune with policy that the FCC has responsibility for, as opposed to politics." MICHAEL WEINBERG "One of the greatest challenges that the FCC faces, especially since the '96 Act was passed, is the way that the Information Age and the Internet has changed what happens at the FCC. There are many more small companies that are not used to dealing with the FCC or 'playing' in Washington. They often do not have a Washington presence, and don't really spend a lot of time thinking about what happens in Washington and how they can be significantly impacted by the decisions made by the FCC...So when we think about reforming the regulatory process, one of the primary goals and one of the primary questions that needs to be asked is not 'Does this work for the people we know?' but 'Does it work for those companies, those people as individuals, those communities that we don't know, that aren't used to coming in and filing comments and filing reply comments and monitoring dockets and doing ex parte meetings?'" "When people are outside of Washington, they think of the revolving door in this incredibly pejorative way...But inside Washington, many people have a much more nuanced understanding. Agency capture is not something where there are people with cigars in back rooms, with boxes of money being passed around, plotting the demise of the public interest. I mean it simply is not that....Instead, it is a natural result of the fact that the FCC, or any agency, isn't that big of an agency. The communications bar is not that big of a bar. The larger communications policy world is not that big of a world...And so over time, you will develop personal relationships with the people that you meet over and over. One of the things that you need to be aware of, though, is that that can influence decision-making in a way that is not necessarily directly connected to policy." "When we get to the point where we have pages and pages of conditions, especially those conditions that by and large expire after a couple of years, it may be time to look at that underlying merger and say, 'In fact, this merger is not in the public interest.'...As a corollary to that, sometimes merger conditions are used to impose policy that is not specific to the merging entities. Many people in this room will agree that that really distorts the regulatory universe, it distorts the market...If a policy is really important enough that we think it should be used in a specific merger and we hope that it will influence the other actors in that field, that's a time when we say: 'No, this is not a merger condition; this is something that is important enough that it is going to be an industry-wide practice.'" WALTER MCCORMICK "We believe that there is nothing more important right now than reform of universal service and intercarrier compensation. These are the financial fundamentals of the industry, they are critical to broadband deployment in rural areas. We commend the Commission for recognizing this and for taking it on." "The Commission's goal is to advance broadband; but the statute under which it derives its authority is a narrowband statute...And the Commission's internal structure largely mirrors the statute, a policy-making structure that is built upon distinct analog, narrow-band technologies rather than the converged digital platforms of today." "[B]oth the statute and the Commission's structure are built upon a framework that treats incumbent LECs from the standpoint of being dominant providers of voice service...Our bureau is the Wireline Competition Bureau, as distinct from the Wireless Bureau, as distinct from the Media Bureau...And as a result, we have a host of archaic requirements that apply only to us, as voice service providers." "[W]hen Congress enacted the law with the forbearance provision, it was meant to take advantage of streamlining. There was an understanding that there was going to be a lot of regulatory reform in the '96 Act, and a lot of proceedings were going to be implemented...It was intended to give the Commissioner an option to either grab onto forbearance petitions filed and make a decision on the issue...Or, if it didn't really rise to the level of having them make a decision, just let it go...It was also intended to impose some discipline on the Commission, so the things wouldn't lay there for a long time...The problem is that in recent years, it was viewed as a way of trying to get around having the Commission make a decision. So as a result, that has tended to emasculate the purpose of the original forbearance section... This is another area where it really is important for Congress to redefine the mission." "The communications industry and the railroad industry are probably the only two industries that are left, where the merger review inquiry isn't focused on competitive harm. The inquiry is something else, where we find no competitive harm, but ask, "Is it otherwise in the public interest?"...The inquiry should be narrow. It should relate directly to competitive harms. It should only relate to competitive harms...I frankly don't think that there should be duplicative merger reviews...This is an area where I hope that the FCC would exercise restraint." EDWARD LAZARUS "[T]he Chairman has been focused on what I think loosely we call regulatory reform from the very first day that he got to the agency...From that day, it was a philosophical matter. And based on his experience in the private sector, he has been focused on having open, fair, data-driven processes, and whenever we're considering imposing any new obligations on the industry, we have to be clear of why we're doing it, and what the relative costs and benefits for doing it are...That's how we've approached everything we do. Now that said, there are going to be disagreements between the agency and the Chairman and industry about how that calculus comes out...That's the nature of what we do. Those are debates that are really important to have. But we are focused on doing that in a thorough and fact-based and open and fair way." "When it comes to regulatory reform, we're open for business. We want to get this right. It's not perfect. I won't pretend that it is...But I also think we shouldn't kid ourselves that when we talk about regulatory reform, sometimes it's code for disagreement over issues of policy and law; disagreements over whether a particular segment of the industry really is as competitive as some of the industry players would like us to think; whether regardless of a market's competitiveness, consumers are getting the protection they need; whether the statute under which we operate provides the authority that we think it does. And I agree with Walter that this is one where Congress could well be looking to update the statute...These are good-faith disagreements. They're important disagreements. But they're not the same as regulatory reform. We shouldn't mistake the two." "We are engaged in a retrospective review of our regulations to look at the ones that may be outmoded. It turns out there are some easy pickings when it comes to that. I think we've discovered that we still have some regulations related to telegraph services, which I don't think actually exist anymore. But we're really actively working on this. We welcome the ideas, and we've been over to USTelecom to talk about this. We do have this initiative that is very high on the Chairman's priority list for reducing the barriers to broadband deployment and build-outs." "It seems to me that forbearance petitions ought to be decided on the evidence. It ought to be a jump ball...But I'd also say, based on my years as a litigator, that evidentiary presumptions are pretty easy to get around, if that's the result you want to reach...What really matters is having fair and impartial decision-makers more than it is setting up a particular set of evidentiary presumptions...If people are calling it on the facts, you're going to, generally speaking, get good decisions." A PDF of the full transcript of the panel presentation, "Regulatory Reform at the FCC: Why Not Now?" is here. 
|
No comments:
Post a Comment