Wednesday, May 16, 2007

A Case of Farsightedness

National Cable & Telecommunications President and CEO Kyle McSlarrow spoke yesterday at the Media Institute, and his speech represented a fairly rare phenomenon here in Washington among leaders among major trade associations: It was farsighted in looking past current disputes to suggest major fundamental change in communications law and policy that would better reflect the new competitive marketplace realities than does the current regime. And the speech was devoid of a lot of the special pleading that one often hears in major addresses from industry trade association leaders.

The essence of McSlarrow's speech was a call for a communications paradigm that replaces the current technology-based silo approach to regulation with a competition-based model that would rely much more heavily on ex post adjudication rather than ex ante rulemaking to remedy any real marketplace abuses. That way the focus would be on a concrete complaint in the context of a specific marketplace situation. And McSlarrow called for structural reform of the FCC as well.

McSlarrow candidly acknowledged that many of his ideas were taken from the work of PFF's Digital Age Communications Act (DACA) reform project (so, as they say in the standard disclaimers, I am not an uninterested bystander here because I played a lead role in the work of the DACA project, along with Ray Gifford, Kyle Dixon, and other of my former PFF colleagues.) And McSlarrow appropriately credited Verizon's Executive Vice President Tom Tauke's "New Wires, New Rules" speech of five years ago with spurring the debate about the need for a new communications paradigm. And Senator Jim DeMint, of course, was credited for taking the DACA model and embodying it his "Digital Age Communications Act" bill, S. 2113, introduced in December 2005.

I remain convinced that the competition-based DACA approach is the correct model for the reforming our nation's communications laws. I also understand that fundamental change such as that embodied in DACA does not happen overnight in Washington, nor as a rule, should it. There is necessarily a gestation period for the bold ideas of farsighted leaders to take hold.

Kyle McSlarrow's speech at the Media Institute yesterday was in the best tradition of a leader with a case of farsightedness, a leader looking over the horizon at the road ahead, not at the present waystation. Senator DeMint has a good case of farsightedness as well. He needs for more of his congressional colleagues to share his vision.

A final but key thought: McSlarrow highlighted some of the steps that past FCC Chairmen have taken in adapting the then-current regulatory regime to changing technological and marketplace developments, starting with Dick Wiley. Current Chairman Kevin Martin has played a significant role in solidifying and extending the regime of minimal regulating broadband, and for this he deserves credit and kudos. But, frankly, I would like to see him (and whichever of his FCC colleagues are willing to go along) start using their bully pulpits and their positions as the nation's communications policy experts to articulate more forcefully and clearly the need for the fundamental paradigm change that Kyle McSlarrow articulated yesterday. Not only is there nothing improper about the Chairman and his colleagues advocating such substantive reform--while implementing and enforcing the current law--in my view it is their responsibility to do so. In the language of a bygone era, such public education and advocacy is on their "job sheets."

Back in the 1970s, CAB Chairman Alfred Kahn--who knows more than a bit about communications too--became the nation's leading advocate of deregulation of the nation's airlines, explaining to Congress and the American public why deregulation was needed and why it would serve the interests of consumer, even though there would be dislocations in particular situations.

One of the admitted difficulties of serving as an FCC Chairman or a Commissioner is that it is understandably easy to be preoccupied with today's pressing issues. The "items" just keep coming at you. In the hurly-burly of today, the natural tendency is to take a rather static or even backwards-looking view of the world. How much market share does X have right now compared with Y? How have we handled this situation in the past? But one of the characteristics of a leader is always to be looking ahead at what's over the horizon, like the scouts sent ahead of a trailing wagon train. I'd like to see Kevin Martin and his colleagues take a good look at DACA as a model for the future. I would like them to catch a good case of farsightedness.