As Barack Obama famously declared after his 2008 election, "elections have consequences."
Well, now what?
First, it should be said much of communications policymaking need not be partisan. Historically, in fact, a good deal of communications policymaking has been accomplished on a bipartisan basis – and this includes the good and the bad, and there has been plenty of bipartisan blame for the latter.
Next, forgive the sacrilege, and with apologies to FCC Chairman Genachowski and all those who (when convenient) parroted the Chairman's mantra that the new FCC would be entirely "data-driven." No. An important element of policymaking necessarily is dependent upon policy preferences and perspectives. As I pointed out in a blog as early as September 2009, as the Chairman's newly-minted "data driven" mantra even then already was being overworked, "regulatory philosophy matters a lot" in deciding how to interpret and make use of data.
I did not mean then, and do not mean now, to denigrate the value of seeking and considering data in the policymaking process. But I did mean to emphasize that it is either naïve or disingenuous to suggest that being "data-driven," in and of itself, is sufficient for the development of sound policy. It is not. It is crucial that policymakers have a proper regulatory perspective and philosophy.
I gave several specific examples in the September 2009 blog of why this is so, and concluded:
"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."
If "elections have consequences," and regulatory philosophy matters, again, now what?
For his part, Chairman Genachowski should abandon his proposal to impose net neutrality regulation on Internet providers. In the absence of market failure or more than a few isolated instances of even allegedly abusive practices, the pursuit of Internet regulation in the form of prescriptive neutrality mandates has been a fool's errand. In truth, the errand primarily has been spurred on by Free Press and a few like-minded allies, and FCC Commissioner Michael Copps, all of whom have a view – a regulatory philosophy if you will – that places a high priority on government control, if not ownership, of the communications media. Both Free Press and Commissioner Copps openly acknowledge they look to self-avowed socialist and Free Press co-founder Robert McChesney for direction on communications policy. On this score, lest you think I exaggerate, see my blog of this past June, "Not Mao Zedong or a Communist…But a Socialist." The American public is in no mood to look towards an avowed socialist for direction on communications policy.
Of the 95 House and Senate candidates, Democrats all, who signed the pro-net neutrality pledge, all 95 lost. Surely it would be wrong to assert that all their defeats are attributable to their pro-Internet regulatory position. But it is would be wrong too to ignore the obvious fact that there is no widespread popular support for regulating the Internet and Free Press-style government control of the media. The willingness of the "lost 95" to sign the pledge was a tell-tale sign of their anti-market perspective.
As for the Republicans now in control of the House, it would be a mistake for them to confuse undertaking proper oversight of the FCC's actions with initiation of a series of ill-conceived "investigations." What is needed by the House Republicans are not new investigations, but new directions. They need to develop a platform embracing free market-oriented communication reform. In today's competitive and dynamic communications marketplace, such reform platform is long overdue. And, obviously, such a market-oriented platform should be embraced by Senate Republicans, and by like-minded Democrats in both Houses. There is no reason why this cannot be an arena for bipartisan accomplishment. Indeed, it was President Carter and his agency appointees that, working with Congress, deregulated the airlines and railroads to the benefit of consumers. And it was President Clinton and his appointees that, again to the benefit of consumers, first articulated the policy that broadband Internet providers should not be regulated as common carriers.
As I wrote shortly before the election in, "Reforming Communications Policy: The Constitutional Underpinnings," communications law and policy would benefit greatly from closer alignment with important constitutional values. This would mean less regulation carried out under the indeterminate "public interest" standard which governs so much of the FCC's regulatory activity, and which provides agency officials with relatively unbridled discretion. And it would mean more respect for the Fifth Amendment property rights of owners and operators of communications networks and owners of media content, as well as for the First Amendment free speech rights of those subject to the FCC's regulatory reach.
FSF's website and blog contain hundreds of long papers and short pieces documenting and explaining the need for meaningful communications policy reform. And for those who want to immerse themselves further, in August 2009 Carolina Academic Press published FSF's book, "New Directions in Communications Policy." The book contains essays by eleven leading law and economics scholars suggesting various avenues of policy reform in areas ranging from broadband to spectrum, and from universal service and inter-carrier compensation reform to media deregulation.
Finally, it should be emphasized, above all, that free market-oriented communications reform would benefit consumers and our nation's economy. Through the further investment and innovation that such reform would spur, new jobs would be created. This ought to be reason enough for the new Congress, and for the FCC, to get serious about developing new directions in communications policy.