Communications Policy in the Next Administration

As in other areas, the differences between the communications policy visions of Barack Obama and John McCain are stark, at least as presented by their surrogates at this week's Federalist Society debate at the National Press Club. And the surrogates are no newcomers to communications policy -- former FCC Chairman Reed Hundt representing Obama and former FCC Chairman Michael Powell representing McCain. You can find the audio and video for the debate here.

There were some sharp partisan jabs, mostly by Reed Hundt, which struck me as a bit at odds with his candidate's professed notion of trying to reach out to all sides and transcending "politics as usual."

But putting aside the entertainment value of the debate's sharpness, for those interested in the future of communications law and policy the debate was very instructive. There is no doubt that Mr. Hundt presented Obama's vision as one in which traditional analog-era regulation plays a much more prominent role than it does in McCain's. This difference in the willingness to maintain (or in some instances re-impose) regulations put in place long ago in the twentieth century's monopolistic communications environment ran throughout the debate.

Here I'll just highlight one instance in which I think the difference in regulatory philosophy is particularly stark, and important -- in the way in which the two surrogates approach the net neutrality controversy. Mr. Hundt enthusiastically embraces what he called the "broadband future-oriented modern version of common carrier," with an "absolute rule against discrimination." Mr. Powell vigorously disagreed, saying that adopting Mr. Hundt's common carrier regime would amount to "the first fateful step of inviting the federal government towards regulating the Internet." Responding to Mr. Hundt's embrace of the need for net neutrality legislation that strictly prohibits discrimination, Mr. Powell said at this point it is "far from clear what problem you are trying to solve," and that the "consequences of empowering legislation around difficult technical and architectural questions is dangerous." While not denying there could be instances of anticompetitive conduct that should be addressed, Mr. Powell said, "the better approach in a new and vibrant market is to put greater emphasis on an enforcement model, an antitrust model." For the core of the back-and forth regarding net neutrality, you can tune in beginning around the 26 minute mark of the replay.

Mr. Hundt is at least forthright in conceding net neutrality mandates are simply another name for a traditional common carrier regime. Some net neutrality advocates shy away from doing this for fear such directness harkens too much to the past. I have explained on many previous occasions why such a regime, with rate regulation and a no-discrimination prohibition at its core, is not an appropriate model to apply on a forward-looking basis to broadband Internet providers in today's competitive communications environment. Perhaps this model was appropriate for the railroads in the nineteenth century, and for AT&T throughout much of the twentieth century, although respected scholars such as Bruce Owen, a member of FSF Board of Academic Advisors, have serious doubts. (See Bruce's scholarly essay on this point here.) But relatively fewer scholars in the field of regulatory law and economics share Mr. Hundt's (and Obama's) view that the Internet should be subject to a public utility-style common carrier regime.

Anyway, as they say, the debate speaks for itself, and tuning in is a worthwhile way for all those interested in communications policy to spend an hour or so.