7013Lessig: Ditch the FCC
- Dec 24, 2008
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
Dec 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. Born in the 1930s, at a time when the
utmost importance was put on stability, the agency has become the
focal point for almost every important innovation in technology. It is
the presumptive protector of the Internet, and the continued regulator
of radio, TV and satellite communications. In the next decades, it
could well become the default regulator for every new communications
technology, including, and especially, fantastic new ways to use
wireless technologies, which today carry television, radio, internet,
and cellular phone signals through the air, and which may soon provide
high-speed internet access on-the-go, something that Google cofounder
Larry Page calls "wifi on steroids."
If history is our guide, these new technologies are at risk, and with
them, everything they make possible. 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. Think about the storm around former
FCC Chairman Michael Powell's decision to relax media ownership rules,
giving a green light to the concentration of newspapers and television
stations into fewer and fewer hands. This is policy by committee,
influenced by money and power, and with no one, not even the
President, responsible for its failures.
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 enemiesexcessive
government favors, and excessive private monopoly power.
Since the birth of the Republic, the U.S. government has been in the
business of handing out "exclusive rights" (a.k.a., monopolies) in
order to "promote progress" or enable new markets of communication.
Patents and copyrights accomplish the first goal; giving away slices
of the airwaves serves the second. No one doubts that these monopolies
are sometimes necessary to stimulate innovation. Hollywood could not
survive without a copyright system; privately funded drug development
won't happen without patents. But if history has taught us anything,
it is that special intereststhe Disneys and Pfizers of the worldhave
become very good at clambering for more and more monopoly rights.
Copyrights last almost a century now, and patents regulate "anything
under the sun that is made by man," as the Supreme Court has put it.
This is the story of endless bloat, with each round of new monopolies
met with a gluttonous demand for more.
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.
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 economyremain
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
networkthey did, after all, build it in the first placebut no doubt
a minimal set of rules is necessary to make sure that the Net
continues to be a crucial platform for economic growth.
Beyond these two tasks, what's most needed from the iEPA is benign
neglect. Certainly, it should keep competition information flowing
smoothly and limit destructive regulation at the state level, and it
might encourage the government to spend more on public communications
infrastructure, for example in the rural areas which private companies
often ignore. But beyond these limited tasks, whole phone-books worth
of regulation could simply be erased. And with it, we would remove
many of the levers that lobbyists use to win favors to protect today's
America's economic future depends upon restarting an engine of
innovation and technological growth. A first step is to remove the
government from the mix as much as possible. This is the biggest
problem with communication innovation around the world, as too many
nations who should know better continue to preference legacy
communication monopolies. It is a growing problem in our own country
as well, as corporate America has come to believe that investments in
influencing Washington pay more than investments in building a better
mousetrap. That will only change when regulation is crafted as
narrowly as possible. Only then can regulators serve the public good,
instead of private protection. We need to kill a philosophy of
regulation born with the 20th century, if we're to make possible a
world of innovation in the 21st.
Lessig is a professor at Stanford Law School and the author of five
books, including most recently "Remix: Making Art and Commerce Thrive
in the Hybrid Economy."
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