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Lessig: Ditch the FCC

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  • Seth Johnson
    ... 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
    Message 1 of 2 , Dec 24 6:59 AM
      > http://www.newsweek.com/id/176809


      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

      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 enemies—excessive
      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 interests—the Disneys and Pfizers of the world—have
      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 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.

      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
      monopolists.

      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."
    • Seth Johnson
      Most people seem to pick up on Lessig s language related to regulation. What I think I hear Lessig playing towards is the notion that we could do an EPA for
      Message 2 of 2 , Dec 27 10:21 PM
        Most people seem to pick up on Lessig's language related to
        regulation. What I think I hear Lessig playing towards is the notion
        that we could do an EPA for the "innovation environment," since the
        EPA remains (apparently) in force despite Lopez and other findings in
        1995.

        I think this is misguided. Pegging Federal legislation to the
        commerce clause has been successful (from the standpoint of having
        such legislation upheld, whatever the legislation's substantive
        merits), but it has also meant the legislation was subject to
        arbitrary judicial doctrines related to the commerce clause.

        Just a note on where this strikes me.


        Seth

        Seth Johnson wrote:
        >
        > > http://www.newsweek.com/id/176809
        >
        > 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
        >
        > 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 enemies—excessive
        > 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 interests—the Disneys and Pfizers of the world—have
        > 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 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.
        >
        > 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
        > monopolists.
        >
        > 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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