Tuesday, May 27, 2008
At last week's Cable Show in New Orleans, amidst all the discussion of substantive issues like net neutrality, leased access, and whatnot, FCC Commissioner Copps again talked about the negative impact of the Sunshine Act on the Commission's decisionmaking process and the agency's sense of collegiality. He reminded the audience that he and then-FCC Chairman Michael Powell had sent then-Senate Commerce Committee Chairman Ted Stevens a letter in February 2005 urging that the Sunshine Act be amended to allow the commissioners to deliberate together outside of public meetings.
When Commissioner Copps renewed his plea at last week's Cable Show, he suggested that, rather than amending the Sunshine Act on a permanent basis and for all agencies, Congress might authorize changes in the Act on a trial basis. The notion of changing any jot or tittle of the Sunshine Act is not popular among the press, even though its failings have long been obvious to many others, including academics of all stripes who have studied the issue extensively. Commissioner Copps deserves credit for continuing to raise the issue.
In 1995, I chaired a special committee of the Administrative Conference of the United States ("ACUS") that recommended, after taking testimony from many agency witnesses and interested members of the public, that Congress authorize a pilot program which would allow agency members to meet in private provided the agency requires that such meetings be memorialized by a detailed summary of the meeting to be made public no later than five working days after the meeting. The ACUS report and a brief law review article I published introducing the report are here.
The ACUS report laid out all the familiar reasons why administrative law scholars and many close observers of agency behavior have urged that the open meeting law be modified, and I will not repeat the report here. This excerpt captures a good part of the argument:
"[A]s a practical matter, it is at least arguable that the Sunshine Act produces an effect contrary to one of Congress’s principal purposes for its enactment: creating multi-member agencies to obtain the benefit of collegial decisionmaking from persons who bring to the decisionmaking process different philosophical perspectives. experiences, and expertise. Unable to deliberate together in private, agency members resort to communicating with each other in writing, through staff, or in one-on-one meetings with other members (assuming the agency has more than three members so that even one-on-one meetings are allowable). Obviously, these indirect means of communication are not conducive to fostering collegiality in the same sense that it is fostered when all agency members are able to engage in a simultaneous collective discussion."
A principal impetus for initiating the ACUS study back in 1995 was that all five FCC commissioners signed a letter asking that the study be performed because they were concerned the Sunshine Act adversely impacted the quality of agency decisionmaking. I understand that it is difficult to get Congress to modify the Sunshine Act. But if all five FCC commissioners once again signed on to a joint letter asking Congress to authorize a trial for a limited period for only the FCC, Congress might well be receptive to such a pilot program. The trial could be limited to rulemakings and require that any closed door meetings be memorialized in a summary of the meeting to be placed in the public record.
I hope Commissioner Copps will draft such a joint letter, take this idea to his colleagues, and secure agreement from all. No one disputes the notion that the FCC ought to function in a way that fosters collegial decisionmaking, consistent with holding agency members accountable for their actions. To that end, the agency's members ought to act collectively to urge Congress to authorize a limited trial to determine if modifying the Sunshine Act will indeed promote such collegiality and improve agency decisionmaking, while still maintaining public confidence in the integrity of the Commission’s processes.
Saturday, May 24, 2008
Lincoln can inspire in many different ways. But as I contemplate Memorial Day 2008, with a presidential election at hand, I am reminded that after winning the presidency, Lincoln brought into his War Cabinet all of his principal rivals for the Republican nomination. And then he added a few Democrats for good measure. He did so knowing full well that in every instance these men considered themselves – wrongly, as it turned out – to be his superiors.
Doris Kearns Goodwin tells the tale of Lincoln’s cabinet in her magnificent Team of Rivals. Her book gives us a new appreciation for an aspect of Lincoln’s character rare in politicians of any age, and certainly not always abundantly in evidence today -- the willingness to reach out to political opponents and seek common cause to advance the public’s interest, rather than self-interest.
In arduously melding his “team of rivals” -- a group of disparate personalities with conflicting loyalties -- into an effective governing unit, Lincoln had two paramount goals: first, save the Union, and, second, lead the nation to what he called in Gettysburg “a new birth of freedom,” meaning, in that time and place, emancipation of the slaves.
In our time and place, on this Memorial Day, and on all Memorial Days since the first, are there really any national objectives more paramount than preserving the Union and the individual freedom for which America has come to stand? To be sure, even since the Civil War, here in America such freedom certainly has not always been enjoyed by all, or enjoyed perfectly in the same way. But is there a country other than America that more truly embodies the spirit of the liberty principle for which the Civil War was fought, for which so much blood was shed to preserve the Union? I think not.
At a time when America finds itself still at war, with our brave soldiers fighting and dying abroad, it should not be too much to hope that, in this election year, our political candidates at all levels might adopt a more Lincolnesque posture. Without compromising on matters of fundamental principle, it ought to be possible in difficult times to seek common cause with rivals whose politics differ. Considering the bonds that bind together all Americans, this is especially true on matters relating to protecting America’s security and the freedom which that security enables.
Sandwiched between the crowning of the latest American Idol and the first trip to the beach or first backyard barbeque, it is all too easy to forget Memorial Day’s true meaning. But let’s don’t. This Memorial Day, as each year, let us remember all those who have shed their blood fighting under America’s flag, and, as Lincoln put it at Gettysburg, “resolve that these dead shall not have died in vain.”
Wednesday, May 07, 2008
Professor Yoo's testimony is worth reading in full. His bottom line: Instead of enacting new laws or regulations, "[t]he better solution is to pursue what I have called 'network diversity,' in which different providers are permitted to experiment with different approaches and to let the choices of consumers control the ultimate outcome."
Here are some highlights that lead him to this conclusion:
- "Internet traffic is growing not only in terms of size, but also in sophistication. During the Internet’s initial phase, the primary applications were e-mail and web browsing. For these applications, delays of a fraction of a second were virtually unnoticeable. The current Internet is increasingly dominated by more sophisticated applications such as streaming media, online gaming, telemedicine, and virtual worlds, which are often much more bandwidth intensive and much less tolerant of delay. The most important development is the deployment of IP video, which some experts estimate will cause that traffic to grow once again at a rate of 90% to 100% each year. Network providers are pursuing a number of strategies to meet this rapidly increasing demand. Unlike the initial transition to broadband, which only required reconditioning existing cable and telephone technologies, the new strategies require significantly greater capital investments."
- "But perhaps the most important and most often overlooked development is the emergence of wireless as a major broadband competitor. The most recent FCC data reveal that wireless has skyrocketed from having no subscribers as of the beginning on of 2005 to controlling 35 million subscribers and 35% of the market for high-speed lines as of June 2007. Published reports indicate that wireless broadband has continued to grow rapidly. The result is that the broadband industry is becoming increasingly competitive. Even network neutrality proponents concede that an increase in competition undercuts the justification for regulatory intervention."
- "Network providers must thus make decisions that involve difficult tradeoffs based on their best guess of what the future will bring. These considerations underscore the problems associated with any one-size-fits-all solution to the Internet. The network now consists of very different transmission technologies, each of which is susceptible to different problems and different solutions. In addition, the number of potential solutions is vast, including building additional bandwidth, storing content locally, and network management."
- "Thus, in order to protect against 'death by a thousand cuts,' any regulator would have to undertake comprehensive oversight of essentially all facets of the business relationship between the parties. The challenge of doing so would be particularly demanding in industries like broadband, which are undergoing rapid technological change. This has led many commentators to conclude that any attempts to mandate access to such complex technologies are likely to prove futile. Indeed, past efforts to impose similar access regimes, such the controversy over protocol conversion and vertical switching services under the Computer Inquiries, leased access to cable television networks, and unbundled access to network elements under the 1996 Act, have become bogged down in incessant controversies and litigation."
In the past several years, Professor Yoo has emerged as one of the leading scholars on the "law and economics" of network industries, particularly with respect to broadband and the Internet. I am under no illusion that his testimony will put to rest the campaign by all of the net neutrality advocates for the enactment of new "neutrality" laws and regulations. But I do remain hopeful that it will give pause to at least some of these advocates.
With all the changes and dynamism occurring in the marketplace and in technology described by Professor Yoo, now is not the time to risk stultifying and ossifying the Internet by adding new laws and regulations that are likely to prove to be straitjackets with unforeseen and unpredictable consequences.