Thursday, September 28, 2017

It's Time to Confirm Ajit Pai

I just saw this piece in the Verge by Gigi Sohn, who served as counselor to former FCC Chairman Tom Wheeler. Ms. Sohn is urging people to “make their voices heard” to oppose FCC Chairman Ajit Pai’s confirmation by the Senate to a new term.
Even aside from the overheated rhetoric, the substance of Ms. Sohn’s arguments is wrong and misleading. A bit more on that score in a moment.
But first I’ll say this: I’ve known Gigi for many years, and, as she knows, I’ve considered her a friend even though we generally disagree on matters of communications law and policy. I’ve always believed, and still do, that differences in philosophical or policy perspectives shouldn’t stand in the way of reasoned discussion and debate – or of friendship.
That said, I’m disappointed that Ms. Sohn is opposing Mr. Pai’s confirmation. It is true, as Gigi says at the outset of her piece, that Mr. Pai is “smart,” “personable,” and “nice.” Those obviously are important qualities for a leader of a multimember agency which ought to aspire to operate on a collegial basis. No one doubts that Mr. Pai possesses those qualities – in spades. But, as importantly, there is widespread agreement that Mr. Pai, by virtue of his prior service on the Commission and on its staff, possesses vast knowledge and expertise regarding the substance of the issues that confront the FCC.
So, the real basis of Ms. Sohn’s objection to Mr. Pai’s confirmation to a new term is that his policy predilections differ in fundamental respects from hers and those of Tom Wheeler, the FCC chairman she served. Well, that’s to be expected in a new administration – and it is in no way a sufficient reason to oppose Mr. Pai’s confirmation. And it never has been. Indeed, I didn’t agree with many of Mr. Wheeler’s actions leading the FCC and knew before he took office that I wouldn’t – but I suspect he will recall that on several occasions, prior to his Senate confirmation, I defended him publicly when his fitness to serve was attacked.
Now, briefly, back to the substance. Mr. Pai has made clear that closing existing digital divides is a priority, and he understands that the existing universal service programs are important tools in achieving this objective. Ms. Sohn’s problem is that, at the same time, Mr. Pai wants to reform the programs so that, to the extent possible, the acknowledged waste, fraud, and abuse that exist are minimized. That must be done if these subsidy programs – currently funded by a nearly 20% tax assessed on all consumers’ telephone bills! –  are to maintain public support. Ms. Sohn should share that objective.
As for “media consolidation,” throughout her career, Ms. Sohn and her like-minded pro-regulatory colleagues have cried wolf about “massive media consolidation” even as media outlets have continued to proliferate. One notable example: They claimed the ill-fated AOL-Time Warner merger would forever dominate the media/Internet landscape. How off-base was that wolf-cry?
Let’s face it. We now live in an era of media abundance – with radio, TV, cable, newspapers, magazines, and, oh yes, the Internet. In other words, digital media nirvana for those who want access to hundreds, nay, thousands, of different views and perspectives. I’ve been involved in communications law and policy for four decades, and I know that when Ms. Sohn raises the red flag of media consolidation, it’s simply a ruse to justify advocating policies that would give government more control over the media.
I don’t have any doubt that Mr. Pai will faithfully enforce any media ownership limits that Congress has put in place or will enact. But I’m glad that, unlike Mr. Pai’s predecessor for whom Ms. Sohn worked, Mr. Pai is unlikely to use the boogeyman of supposed “media consolidation” as an excuse to adopt new regulatory mandates that, in effect, give government more control over the programming content and editorial decisions of media outlets. That is the wrong way to go in an age of media abundance.
Finally, the Internet. Truth be told, the real gravamen of Ms. Sohn’s objection to Mr. Pai’s confirmation is opposition to his proposal to consider repealing the current public utility-style regulatory regime put in place by Mr. Wheeler, with Ms. Sohn’s assistance. This gravamen is gravely wrong.
As Mr. Pai explained in his lengthy dissent to the Wheeler Commission’s decision to impose public utility regulation on Internet service providers, there are serious questions regarding the Commission’s legal authority in this regard. It is entirely proper for the Commission to reexamine those legal issues, as Mr. Pai has proposed to do.
Moreover, aside from questions relating to the Commission’s authority, there are good reasons to reconsider whether the imposition of public utility-style regulation on Internet service providers is unsound as a matter of policy. Up until Mr. Wheeler led the Commission to embark on a radically different course, there was a bipartisan consensus that Internet providers should not be regulated under the same “common carrier” regulations as old Ma Bell, which, after all, operated in a monopolistic environment.
Back in 1999, at the dawn of the modern Internet Age, then-FCC Chairman William Kennard – a Democrat appointed by President Clinton –  declared, in turning away pleas from pro-regulatory interests, that it would be wrong to “just pick up this whole morass of [Title II telephone] regulation and dump it wholesale on the [broadband] cable pipe. That is not good for America." Of course, almost twenty years later, in today’s far more dynamic, competitive digital broadband Internet market environment, imposing “telephone world” regulation, as Mr. Kennard then put it, on Internet service providers is certainly “not good for America.” Already there is persuasive evidence, for example, that the Title II public utility-like regulatory regime imposed by Mr. Pai’s predecessor has depressed investment in broadband infrastructure. That is not good for America.
In any event, surely the fact that Mr. Pai has initiated a rulemaking proceeding to reexamine public utility regulation of Internet service providers is not a reason to mount a political-style campaign against his Senate confirmation.
Gigi Sohn is entitled, as she says, to “make her voice heard.” That’s true. But it is true that Ajit Pai deserves prompt confirmation to another term. And not only because, as Ms. Sohn acknowledges, he is “nice,” “personable,” and “smart.” The agency needs to turn away from the doggedly pro-regulatory disposition of Mr. Pai’s predecessor toward a free market and rule of law-oriented disposition suited to today’s dynamic digital communications marketplace. Mr. Pai surely is the right person to lead the FCC at this time.