Saturday, September 12, 2009

When Friends Agree to Disagree:Data and Regulatory Philosophy

At last Thursday's Free State Foundation conference at the National Press Club, celebrating the release of FSF's new book, New Directions in Communications Policy, there was an exchange between me and Blair Levin concerning the respective roles of data and regulatory philosophy in the development of the broadband plan. As I said in my introduction before his opening keynote: "I am an admirer and respecter of Blair's communications law and policy expertise, his experience, and his dedication. And I consider Blair a good friend." Those of you who have heard me over the years introduce Blair, now the Coordinator of the FCC's national broadband plan efforts, know that when I call him a good friend and say I respect his expertise, I am not just making small talk.

I think Blair will agree – and indeed he said so in his remarks at the conference – that he considered our exchange, now carried on, and perhaps magnified a bit, in the press, valuable in helping to think about the development of a broadband plan that best serves consumers and the overall national interest. You can read the reports about the conference in Communications Daily [subscription required], Broadcasting & Cable, and TR Daily [subscription required] to get a flavor of the exchange.

As background, I had been quoted earlier in Communications Daily as saying that while I thought the broadband workshops had been useful, I would like to see, in addition to the Commission's ongoing emphasis on data-gathering, more focus on what regulatory philosophies or models work best. In my introduction of Blair on Thursday, I said:

"Certainly, the essays in the New Directions book contain considerable data concerning broadband subscription, the number of competitors, the growth in USF funds, and the like. I agree, of course, that it is important for our public policymakers to have good, reliable data as they make decisions – and I bet our opening keynoter, a very key player at the FCC, might make the point that the new Commission is going to be 'data-driven,' and that it needs good data to develop a broadband plan. True enough."

And then I went on to say:

"But the development of sound policy truly does depend on what you do with the data, how you interpret it. Here's an example. Free Press says that prior to the abandonment of the FCC's sharing requirements for the incumbent telcos' lines there were 6000 ISP competitors in the country and now, as a result of deregulation, there are less than a dozen. Well, that is true only if you don't recognize as a matter of regulatory policy the important distinction between facilities-based competition and competition based on regulated resale, and if you don't think it makes any difference whether competition is facilities-based or resale-based. So if you take the 6000 figure at face value and run with it, you would be making a big mistake, in my view, in terms of developing sound policy. Indeed, the development of sound policy depends on having good data and having a good understanding of the economics of network industries and, in the case of communications policy, especially of the dynamic nature of technological change in the marketplace."

During his presentation, which is now posted on the FCC's Blogband website, Blair made several points responsive to my contention concerning the need for some focus on regulatory models and perspectives. I agree with much of what he said. For example, Blair said that if the FCC doesn't get data on who is unserved, where they are, and what it costs to build out a network to serve them, "you are going to get the wrong answer no matter how thoughtful your philosophy." Agreed. He also said it is not the staff's role to focus on regulatory policy, but rather the Commission's. I agree, of course, that it is the Commission's role, ultimately, to establish regulatory policy. But I think it is also the staff's role, with its expertise and the tools available to it, to facilitate the commissioners' understanding of how various regulatory policy and perspectives may impact their decisions. In my view, the broadband workshops would be one appropriate way of doing so, along with others. But I don't disagree with Blair's statement that the fact-finding comes first, during what he called "the early stages of a policy process." After all, he did state that we "will get to that point in the dialogue when philosophy does matter, where different views about the appropriate role of the public sector will be germane to the issues."

Thus, on this matter of the intertwined relationship between "data" and "regulatory philosophy," in reality our differences probably are not that large, especially as Blair agrees that there is a point in the process – before decisions are made – where "philosophy does matter," when the appropriate role of the public sector is germane. (There is a reason why FSF's masthead proclaims "Because Ideas Matter.")

Let me illustrate a couple of instances in which good data certainly matter, and an instance in which regulatory perspectives or philosophy matter, and why in this latter instance being "data driven" in and of itself is insufficient to lead to sound policy.

In my comments filed with FCC on the plan, I urged that the priority should be the targeting of federal support for the deployment of broadband facilities in presently unserved areas. If deploying broadband to unserved areas is a priority, and it should be, it is necessary to have good (which is not the same as perfect) data that indicates which areas presently lack service. Fortunately, through the now prevalent ongoing mapping exercises, to the extent that such data previously was unavailable, it is now quickly becoming ever more so.

With respect to increasing adoption, an objective I consider consistent with the development of a sound broadband plan, having good data is also important in many respects. For example, in my comments I suggested it may be appropriate for the government to subsidize the purchase of computers by low income persons as a means of promoting more widespread adoption. Whether this makes sense or not, or the extent to which it does, depends on having sound data concerning computer ownership by low income households, the number of persons affected, the cost of the computers and the like.

And regarding adoption, there is good data, especially from the Pew Internet and American Life Project, showing that, while there are many non-financial reasons for non-subscription to broadband, for some the principal reason is related to income. FSF Distinguished Adjunct Fellow Deborah Tate, who chaired the Federal-State Joint Board on Universal Service while serving as FCC Commissioner, recently advocated in a Baltimore Sun commentary that the Lifeline/Linkup program be changed to provide support to low income persons for broadband subscriptions. Again, having good data on the extent to which income level correlates with broadband subscription, and the extent to which a particular level of financial aid is likely to correlate with an increase in take rates, is useful in developing sound policy in this regard.

So, these are examples where good data points are necessary if policies designed to increase deployment and adoption are to be implemented in the most effective and efficient way.

Now, consider an instance in which regulatory perspective and philosophy matters a lot. As I said on Thursday, Free Press has suggested in its Dismantling Digital Deregulation paper that at one time there were 6000 Internet Service Providers in the country and that the average American consumer had access to more than a dozen ISPs. As a result of the FCC's abandonment of DSL line sharing and wholesale price regulation policies around 2003-2004, this story line goes, only a handful of the 6000 ISPs remain and consumers no longer, on average, have access to a dozen ISPs. Well, in deciding how to interpret this data, how to process it, here regulatory philosophy matters a lot.

Let's assume for the sake of argument that the 6000 figure for the number of independent ISPs is an indisputable fact. Nevertheless, I would not want the FCC's development of a broadband plan to be "data driven" (in the wrong way) by this particular data point. Rather, I would want commissioners to understand that the 6000 ISPs existed merely at the sufferance of an agency policy of "managed competition" through regulated common carrier resale, and that such a "managed competition" policy does not provide incentives either for the incumbent providers to upgrade their networks or for the so-called "competitors" actually to build out their own network facilities. And I would want them to understand that, in the long run, which is what matters, consumers benefit more from facilities-based competition that supports sustainable competition than from managed resale that does not support sustainable competition.

And here is the key point: In deciding whether to recommend returning to the common carrier/net neutrality/open access regulatory regime advocated by Free Press and others, or whether to adhere to the deregulatory broadband policies the Commission largely adopted five or so years ago, what matters in reaching the right decision is not only knowing the 6000 ISP data point. Rather what matters is having in mind a regulatory philosophy that enables one to understand why this particular data point should not be considered a reason for supporting a common carrier regulation in light of the difference in investment and innovation incentives created by facilities-based and non-facilities-based competition. This is what I mean when I say that, in developing the broadband plan, the commissioners should have in mind a regulatory philosophy.

Commissioner Meredith Baker, who delivered the closing keynote at Thursday's conference, was most eloquent in speaking to the importance of having both good data, what she called "fact-based evidence," as well as a regulatory philosophy grounded in free market principles. In her speech, titled, "Incentives Matter: Decision Making at the FCC," Commissioner Baker said that having "good data is critical," especially with respect to what ought to be the highest priority in broadband policy, "to get broadband to all remaining unserved areas of the country." (As stated above, I fully agree this should be the top priority in the plan.)

As for regulatory principles, Commissioner Baker said she starts "with an assumption that markets work better than government intervention and that competition regulates market behavior more efficiently than regulators can." This is a simple but fundamental "first principle," but not one to which everyone subscribes, certainly not those parties urging the Commission to impose common carrier regulation on broadband ISPs. Commissioner Baker added: "[M]ost importantly, I believe incentives matter. Actions government takes –or doesn't take – affect market behavior and create incentives. I recognize that nearly any regulatory change the Commission makes will disturb the balance of the market—maybe for better, but possibly for worse. Therefore, our decisions must be fact based, fully considered, and reasoned. Good intentions are not enough."

Speaking more specifically about the analytical framework she proposes to use in reaching policy decisions, Commissioner Baker identified these elements: (1) identify objectives when launching proceedings; (2) look to the statute; (3) understand the context of the policy at issue; and (4) weigh the costs and benefits of any decision, including the potential unintended consequences. This last element is critical, because if the wrong balance is struck, "we risk imposing costs and other regulatory burdens on providers." That raises prices, reduces quality of service, and harms innovation, outcomes that "damage consumer welfare and endanger economic growth in the dynamic sector of the economy at a time when we can least afford it."

The upshot is this: The extent to which one starts with a basic assumption that markets work better than government intervention or the other way around is part and parcel of a regulatory philosophy. Whether one embraces cost-benefit analysis, or appreciates the law of unintended consequences, or the principle of "first, do no harm" is part and parcel of a regulatory philosophy. So is the extent to which one accepts, especially in regard to communications markets, the power of Schumpeterian dynamism to change markets, as opposed to embracing a static or snapshot market view. And while it is easy to hypothesize that regulators should "let go" of regulation at just the right time as competition becomes more robust, one's regulatory philosophy influences whether one believes the error costs of waiting too late generally exceed the error costs of deregulating too early. These are but some of the ways in which one's regulatory philosophy is brought to bear on analysis of available data.

In my view, as Commissioner Baker articulated so nicely, a regulatory philosophy grounded in an understanding of free market principles best serves consumers. As I said in my comments to the Commission back in June, the broadband plan should be grounded firmly in such principles.

I am grateful to Blair Levin for his thoughtful and thought-provoking remarks at Thursday's FSF conference. It is true we don't always agree, but we always learn something by listening to each other. As Blair said on Thursday: "One of the nice things about friendship is it does not require agreement." I agree.

And, finally, I am very grateful to Commissioner Baker for delivering her maiden address at the FSF conference, and for doing so after flying back all night from Brazil to do so. Her keynote will repay many times those who read it closely, as I have several times.

PS – I should add that, by all accounts, the presentations of the three scholars – Jim Speta, Christopher Yoo, and John Mayo – were extremely informative and useful. More about these terrific presentations when the transcript is released. In the meantime, you will be able to watch them on the video soon if you missed attending the conference.