August 18, 2004  ·  Tim Wu

As my colleague Glen Robinson wrote in the 1990s, the transformation of the FCC from the 1960s-to 1990s was �one of the stunning achievements of modern public policy,” accompanied by “the transformation of a staid and stagnant industry into the most dynamic and rapidly growing industry in the modern economy.� As he argues, it �did not come about through technology alone; it came about by rethinking notions about natural monopoly, economies of scale and scope–concepts near and dear to the ancient regime.�

Where are we today?

The new FCC is still alive: there is much the FCC is trying to do that is visionary and great. But in recent years there’s been serious slippage, enough to call a trend. Today, its as if there are two commissions, in a battle for dominance in Southwest DC.

The first is the “Antitrust-FCC,” and it is as Glen describes. It is deregulatory, generally pro-innovation and willing to act for consumer welfare. Its inspiration is modern antitrust law, and its projects are as follows:

- Spectrum reform. Quiet, but happening in lots of small ways.
- Number portability & do not call. The arguments against these were laughable. The natural followup is the right to buy cell phones that will work on any network.
- The “Network Freedom” agenda, and the threats to cable and DSL to keep the net neutral.
- Broadband policy and intermodal parity — the effort, many times wrecked — to put cable and DSL on an equal playing field.
- Not killing VoIP (so far).
- Encouraging powerline and ultra-wideband.

If only that were it. The other is the “Regulator’s FCC,” a flashback to the bad old days of the FCC in the 1950s and 1960s. This one is a pushy, “big government” regulator whose intrusions are numerous, and whose overreaching of statutory mandates are standard practice. It listens too much to the FBI, the RIAA, the MPAA, and the White House. And its projects are these:

- Pseudo-copyright regulation of the electronics industry, including Broadcast Flag, Plug and Play, Digital Audio;
- Overzealous idecency enforcement;
- The IP-enhanced services proceedings (does anyone really understand what the point of these are?).

So as I list them here, the good projects outnumber the bad. But the real question is this: which projects get priority, and which are left to lapse?

The fear is that the lessons of the FCC’s own Vietnam — the 1960s — are being lost. And I think it is the duty of people who follow the FCC– particularly the academics who have helped push the FCC toward an antitrust model — to realise this is going on, and not ignore all of this as election-year posturing. It is time to remind the FCC what it says it believes in.

  • Robert Young

    Prof. Wu,

    That’s a highly interesting, and realistic, way to look at the FCC, much like the way one views the Supreme Court. It underscores the importance of politics, in terms of the bent of the commissioners, in the process of determining priorities. On a related note, I trust you saw the gem of a piece in the NY Times, which speculates on who the next FCC head might be under a second Bush term…

    To go back to your question, it is my firm belief that an “antitrust FCC” should be the priority, and within that choice, the first item you list… deregulating low frequency spectrum… should by far be the number one issue.

  • Anonymous

    You can’t really put the indecency enforcement commissioners on the bad side since most of them are in favor of pro-competition laws and against so-called big government. Some of the commissioners are in favor of all the proposals in your two lists.

    So I don’t think you can really say that it’s “two FCCs.” Rather, you might say that there is some debate over which issues should be given preeminence.

  • JD Lasica

    Nonsense. The FCC’s indecency clampdown is a travesty and has chilled speech on the radio airwaves. Creators of cutting-edge television shows have already indicated that they no longer know what’s permitted — and so are erring on the side of the safe and bland.

    Professor, you didn’t mention perhaps the FCC’s most critical decisions of the past year — the much-criticized decision to scale back ownership limits by large media corporations, a decision thrown out by a federal court. Perhaps it didn’t fit your model — it was a pro-deregulation, anti-consumer move.