Deborah Tate on Media Ownership

Deborah Tate, FSF's Distinguished Adjunct Senior Fellow, has a piece posted on MMTC's Broadband Justice website that argues for a less restrictive media ownership policy in general, while, at the same time, urging the FCC to take further actions to promote more minority ownership of media properties.

Debi's perspective as a former FCC Commissioner always warrants close attention, and she is surely right to urge the FCC to recognize "that our citizens have ubiquitous access to global voices for news and information, and this should result in rolling back of antiquated ownership rules of decades past." And, she is passionate about furthering opportunities for female and minority ownership, as evidenced by her long-standing leadership role at MMTC, so when she offers suggestions on that front, they should be carefully considered.

Forbearing from Broadband Regulation

I just came across one of those items that reinforces the impression that the FCC needs to move much more quickly -- say, on Internet time -- than it presently does if the nation is to realize the economic and social benefits of the necessary transition from a narrowband to a broadband world. In this instance, I have in mind a December 7 ex parte letter filed by CenturyLink in connection with a forbearance request it submitted almost a year ago. (Portions of the publicly-available letter have been redacted due to competitive considerations.)

CenturyLink seeks relief from "dominant carrier" tariffing and other regulatory requirements developed during the last century's Computer Inquiries (dating from the early 1980s). CenturyLink says it needs relief from the regulatory requirements so it can compete "on a level playing field against larger, established providers of enterprise broadband services, including AT&T, tw telecom and Verizon." Moreover, CenturyLink explains that its enterprise broadband services currently are subject to a disjointed set of regulatory requirements that, in light of past corporate acquisitions, vary depending on the CenturyLink affiliate that provides those services.

As CenturyLink puts it: "This disparate regulation frequently precludes CenturyLink from entering into the streamlined, customized arrangements that purchasers of enterprise broadband services demand in today's highly competitive marketplace." CenturyLink's letter explains in considerable detail why, in a competitive environment in which enterprise broadband customers seek to negotiate individualized specific commercial agreements, continued "dominant carrier" tariffing requirements put it at a competitive disadvantage relative to all of its competitors not subject to those requirements.

I find CenturyLink's case for forbearance relief persuasive, but you can review its ex parte letter and judge for yourself.

I really want to make these broader points which go well beyond CenturyLink's own forbearance petition:

• The "enterprise broadband" market, which is another way of saying "sophisticated business customers" is sufficiently competitive that none of the marketplace providers should be subject to "dominant carrier" regulation because there are no longer dominant carriers in this market.

• Broadband services, whether or not denominated "enterprise services," should not be subject to telephone-style narrowband legacy regulations. There should be a "wall of separation" that protects broadband services from such legacy common carrier regulations.

• There is no reason for the Commission -- just because it can -- to take a year, or even more, to decide forbearance petitions seeking regulatory relief. As then Commissioner Michael Powell put it back in 2000, "[o]ur bureaucratic process is too slow to respond to the challenges of Internet time." A dozen years later it's time for the FCC to act with greater dispatch.

It's not too early for the FCC to begin making some New Year's resolutions for reforming communications policy and the way it does business.

Adam Thierer's Recommended Reading

I just saw my former colleague Adam Thierer's post, Important Cyberlaw & Info-Tech Policy Books (2012 Edition). Put simply, Adam's review of important books in 2012 represents a prodigious effort on his part for which we should all be grateful. As usual, his comments are insightful, knowledgeable, fair, and well written.

I was obviously pleased that Adam had nice things to say about the Free State Foundation's new book, Communications Law and Policy in the Digital Age: The Next Five Years. Possibly I'm a bit biased.... but I'm confident that FSF's new book is important, and I am grateful that Adam agreed.

Adam takes note -- well, quite justifiably, tears apart -- Susan Crawford's new book, Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age. If you want to get a glimpse of the argument for pervasive government control and public utility regulation of today's Internet providers, then Crawford's book will provide it. At least, in reading this unrelenting polemic, those of us who advocate for free market-oriented, First Amendment-protective polices will know what we're up against.

And if you want to understand the case for a deregulatory, free market policy regarding broadband Internet providers -- in other words, if you want to know why Susan Crawford is wrong -- then you should definitely read Communications Law and Policy in the Digital Age: The Next Five Years.

But I digress. When you see Adam, thank him for continuing to read and read what often must be well into the night when many us simply decide that bedtime calls.

Looking Ahead to 2013!

As far as I know, Einstein's "Theory of Relativity" doesn't explain why each year seems to go by faster than the last. If I'm correct about this, perhaps someday "another Einstein," as my mother used to say, will come along to explain the phenomenon.

Until then, I'll just keep pinching myself and accept the fact that the holidays are here and 2012 is almost gone.

From my perspective, it's been another good year. What, you say? Another good year?

Yes, I understand that America faces very serious problems, major challenges at home and abroad, ranging from impending fiscal cliffs to continuing terrorist threats. But what I mean by "from my perspective" is that I am grateful that during 2012 the Free State Foundation has been able to continue to engage in the ongoing battle of ideas, and to engage from a stronger position than ever before.

After all, engaging in the battle of ideas is our raison d'être.

And, of course, the battle rages on, as it has throughout most of our history. There are different conceptions concerning the proper role and size of government and the proper balance between government regulation and marketplace competition.

Our own disposition at the Free State Foundation is not hidden. To the contrary, we proclaim our allegiance to free market, limited government, and rule of law principles at the federal level and in Maryland.

Most of our work involves communications law and policy at the federal and state level. Here too, for sure, the battle of conflicting ideas rages on. For despite the increased competition and technological dynamism that have dramatically altered the marketplace – giving consumers choices of providers and services hardly imaginable barely a decade ago – many still argue for more rather than less government regulation and control.

Even as competition and consumer choice increase, the pro-regulatory advocates suggest that today's major broadband providers, whether they employ wireline or wireless technologies, or whether they formerly were called "cable" or "telephone" companies, are "monopolies." They take this tack even though many consumers readily substitute one service for another, or one provider for another, or one technology for another, to get a better price, a different package of features and functions, or better quality. And the pro-regulatory advocates adhere to this "monopolistic" line of attack even as business models and consumer demand evolve and re-evolve at a dizzying pace.

I always try to be optimistic. But I am not so naïve as to suppose the battle concerning more or less regulation of communications and Internet markets will not go on well into 2013, and beyond. In the Free State Foundation's new book, Communications Law and Policy in the Digital Age: The Next Five Years, FSF Research Fellow Seth Cooper and I authored a chapter titled, "Placing Communications Law and Policy Under a Constitution of Liberty." The Constitution of Liberty to which we refer is Friedrich Hayek's famous volume. At the outset, we declare that "Hayek's work of political economy seeks to explain why a system of government based on certain foundational rule of law principles is a predicate for the functioning of an efficient economic order that both preserves liberty and promotes prosperity."

I commend the chapter to you for a more complete explanation. But we summed up this way:

Hayek’s minimal requirements for an effective market system in a society respecting individual freedom yield a set of basic insights for reforming communications law and policy for the digital age. These basic insights are: (1) a proper function of government is the protection of property and enforcement of contracts; (2) free markets, not government officials, should dictate the quantities of goods and services produced and the prices at which they are offered; (3) administrative agencies are very often overzealous in pursuing the public good, at the expense of individual freedom; and (4) costs imposed by new regulations almost always are underestimated, while new developments are not fully anticipated.

Even assuming good intentions, government agency “experts” characteristically are guided by various political or bureaucratic incentives and goals rather than market incentives.

With these Hayekian insights in mind, we discussed current problems with communications policy – and proposed reforms – in the areas of broadband policy, video services, and spectrum policy. What I want to do now, simply to highlight some of the important issues that lie ahead in 2013, is to very briefly point out instances of failed policy in these three areas – and suggest what should be done.

            Broadband Policy

Plainly put, absent market failure, it was wrong for the FCC to adopt net neutrality regulations that, in practical effect, impose a common carrier-like regime on broadband services. The FCC's net neutrality mandates are inconsistent with the Hayekian principles in fundamental ways. A proper broadband policy – essentially the policy that was in place before adoption of net neutrality regulations – would be to "wall off" broadband services from the public utility-like economic regulation to which last century's narrowband voice services were subjected. This does not mean that all regulation is improper. For example, even in the context of the Commission's net neutrality proceeding, I have supported regulation to require transparency so consumers can make informed choices. And certainly regulations relating to certain public safety functions are appropriate.

Christopher Yoo, in his chapter, "Internet Policy Going Forward," in FSF's new book, concludes: "On a broader level, policymakers would benefit from taking seriously the possibility that the days of a 'one size fits all' approach to Internet regulation may well be over and that looking backwards may not always be the best way to promote future success."

Looking backwards is the wrong policy, indeed.

            Video Services

With the proliferation of choices for consumers to receive video services – from cable and satellite operators, to broadcast stations, to telephone companies, to wireless companies, to over-the-top Internet providers, the laws and regulations governing video service providers are woefully out-of-date and constitutionally suspect. Take just one example. Invoking its two-decade old program carriage rules, the FCC has ruled that Comcast discriminated against the Tennis Channel by virtue of its channel placement on Comcast's cable system.

In ruling against Comcast, the Commission abrogated, in mid-term, provisions of a contractual agreement entered into voluntarily between Comcast and the Tennis Channel. In our book chapter, Seth Cooper and I more fully analyze the FCC's Tennis Channel case to show why, especially in today's competitive video environment, it is improper as a matter of policy for the government to substitute its judgment concerning program placement for that of the cable operator and the consumers who choose to subscribe to the operator's services.

And there is this too. In order to find Comcast "discriminated" against the Tennis Channel vis-à-vis placement of two Comcast-affiliated channels, the Commission had to take a deep dive into examining the extent of the overlap between the respective channels in terms of their programming genres, target audiences, advertisers, and ratings. In this day and age, it is difficult to see how such intrusion into program content by the government is compatible with the First Amendment's free speech guarantee.

There are many other examples of legacy video regulations that, on policy and constitutional grounds, should have been jettisoned long ago – say, for example, many of the media ownership restrictions and "must carry" cable and satellite TV mandates – and this work lies ahead. I am hopeful that the D.C. Circuit's forthcoming review of the FCC's Tennis Channel ruling will result in progress on this front. But, in any event, the fight must continue.

            Spectrum Policy

A word about spectrum policy is in order in light of its importance in the coming year, and surely for years to come. The Commission has a difficult, even unenviable, task ahead in designing the coming incentive auctions so that the goals Congress established will be achieved. In her FSF book chapter,

"Proposed FCC Incentive Spectrum Auctions: The Importance of Re-Optimizing Spectrum Use," former (twice, no less!) FCC Chief Economist Michelle Connolly explains why the auctions, if successful, portend such important economic and social benefits. And then she examines the factors that are relevant to sound auction design in order to achieve the most beneficial societal results.

Here I will just highlight Michelle's firm advice that the Commission should refrain from adopting use and eligibility restrictions in designing the auction. As she puts it, "such constraints would only lead to a loss of economic efficiency and would not necessarily guarantee a more competitive wireless market." This is true, of course, and the point applies across-the-board to so much more of the Commission's spectrum policy. Whatever its intentions, the agency's tendency to assume it can micro-manage outcomes to achieve "optimal" competitive results, rather than relying on rules promoting flexibility of use and marketplace freedom, is ultimately counterproductive, costly, and harmful to consumers.

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Of course, there are many other important legal and policy issues confronting the Commission in 2013 (and beyond) in which the outcome of the clash of ideas ultimately will be determinative. In the areas of wireless regulation, special access regulation, and merger and transaction review regulation, for example, the pro-regulatory forces will be pressing for more regulation and less marketplace freedom. In each instance, the case for less regulation and more marketplace freedom must be presented effectively and persuasively. And on the international front, the disturbing outcome of last week's World Conference on International Telecommunications (WCIT-12) in Dubai means that the fight against multi-faceted government control of the Internet will continue for years.

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So, as I look ahead to 2013, I do so with eagerness and with much appreciation that the Free State Foundation is able to continue to engage in the ongoing battle of ideas, consistent with our guiding free market, free speech, and rule of law principles. We are always grateful for your support in this endeavor, and for your friendship.

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If you're looking for a last-minute stocking-stuffer, or planning to use the holiday period to do some serious, enlightening reading to get ready for 2013, here are the links for ordering the Free State Foundation's new book from Amazon and Barnes & Noble. You may order the book from Carolina Academic Press here. If you order from CAP before December 31, 2012, and use the special discount code MAYFSF12, you will save 20%!

And, speaking of links, we certainly would be grateful for your donation, in whatever amount, to support our work. The Free State Foundation link to PayPal for making a year-end tax-deductible contribution using your favorite credit card is here, or you may send a check to the Free State Foundation, P. O. Box 60680, Potomac, MD 20859.

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Above all, our very best wishes for the holidays and for a healthy and happy 2013!

Congress Should Make Way for a Free and Disruptive Digital Music Market

Free markets are driven by innovation. But regulation tends to discourage disruptive changes that bring about breakthrough products and services to consumers. The current clash over copyright licensing royalties for webcasting shows a stark contrast between the pro-market approach and the pro-regulatory approach to dynamic markets.

The variety of emerging technologies and platforms for providing digital music services suggests a marketplace environment that is innovative and competitive. Webcasting services like Pandora, Spotify, and iHeartRadio are the market's latest breakthroughs. Yet digital music content is currently subject to a regulatory regime of forced access mandates and price controls. Music copyright owners are compelled to license their content to music service providers, typically subject to different rates depending on the type of service involved.

When it comes to digital music content, federal policy has the effect of insulating the status quo from disruptive changes. But if anything deserves to be disrupted or changed, it's the current regime of regulatory controls. Transitioning to a free market framework for music copyright licensing royalties would best unleash the forces of innovative change, to the benefit of consumers.

On November 28, the House Subcommittee on Intellectual Property, Competition and the Internet held a hearing on webcasting of digital music and copyright licensing royalties. Testimony focused on rate-setting standards governing royalties that webcasting services should pay to copyright owners. The so-called "Internet Radio Fairness Act of 2012" (H.R. 6480/S.3609), which was under discussion at the House Subcommittee's hearing, would move webcasting from under the "willing buyer/seller" rate standard to the 801(b) standard that applies to certain other music services.

Federal law charges the Copyright Royalty Board to determine "reasonable terms and rates" for such royalties. The Board applies the "willing buyer/willing seller" standard to webcasting services. That is, the Board determines what royalty rates "most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller."

However, the Board applies the different Section 801(b)(1) rate standard to other services, such as cable and satellite providers. Under the so-called 801(b) standard, "reasonable terms and rates" are those calculated to: (A) maximize availability of creative works to the public; (B) afford copyright holders a fair return and copyright users a fair income under existing economic conditions; (C) reflect the roles of the copyright holders and users with respect to creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets; and (D) "minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices."

This anti-disruption proviso epitomizes what is wrong with the existing regulatory regime controlling music copyright royalties. Indeed, this aspect of the Section 801(b) was the subject of intense debate in House Subcommittee hearing testimony.  And it should be a focal point for rolling back and eventually eliminating the compulsory licensing and rate-setting regime rather than expanding it.

New ideas and novel applications of knowledge are what sustain and drive free markets. That disruption enhances consumer welfare has become so widely recognized it has all but attained axiomatic status. Disruption is the result of successful investment and innovation. Unpredictable and rapid changes in technologies and business models lead to new products and services, overthrowing old industry patterns. This includes the dramatic rise of new entrants, creating new demand through supply and overthrowing complacent incumbents.

The critical role of disruption in modern markets has also been explained by a myriad of entrepreneurs and academics. Former Intel CEO Andrew Grove, for example, popularized the concept of "strategic inflection points" in describing when the fundamental rules of industry and business operations are dramatically altered by "10X changes" in competitive forces, technology, or consumer behavior. In his book, The Innovator's Dilemma, Harvard Business School's Clayton Christensen brought into sharp focus the role of disruptive innovation in markets, resulting from changes in business models and technology. For that matter, House Subcommittee hearing testimony by SoundExchange President Michael J. Huppe offered several other examples of leaders in technology markets, including music services, extolling the benefits of disruptive change in enhancing economic well-being.

Of course, no one should want regulatory standards to determine the future direction of market disruption. But neither should regulation seek to forestall or banish it. As economist Jeffrey Eisenach pointed out in his hearing testimony, 801(b)'s ratemaking provision grants to users "a de facto right to perpetual profitability based on their current business models."

The existing regulatory regime governing music copyright royalties supplants market freedom by controlling access to and prices for the primary input for many music services – that is, digital music content. These problematic aspects of price controls were the focus of my Perspectives from FSF Scholars paper, "Putting Music Copyright Policy on a Free Market Footing." Although the willing buyer/seller standard is intended to mimic market-based prices, like the 801(b) standard it still involves an onerous displacement of free market mechanisms of adjustment to changing circumstances. Section 801(b)(1)(D) takes regulatory intrusion a step further, however, by expressly seeking to impose stasis in pricing.

Moreover, the current compulsory licensing and ratemaking regulation for digital music content regulation tends to foster a market environment that is inhospitable to experimentation and to further waves of innovation. Government-prescribed rules constrain or even displace the risk-taking and knowledge-based decisions of diverse market providers. The difficulty is that when regulation prompts providers to forego promising innovations, the opportunity costs to consumer welfare are impossible to measure.

Forced access and rate regulations of digital music are particularly unjustifiable in light of today's market conditions. Long gone are the days when radio and cassette tapes were the only ways to access music. CDs and vinyl are still widely available for music aficionados, along with broadcast radio. But consumers now have ample choice among cable music services, satellite radio, online on-demand services, as well as webcasting services relying on ad-based or subscription models.

House subcommittee hearing testimony by Pandora Chairman and CEO Joseph J. Kennedy, raised understandable complaints about the "lack of a level playing field." After all, webcasting services are subjected to a different rate standard than other services, such as cable and satellite. (Commercial radio broadcasters, for that matter, are exempt from having to pay music copyright royalties at all.) But these fights regarding fairness and favoritism are an inevitable by-product of unnecessary over-regulation. In a dynamic market, such as the market for music content, such disputes are best left for the market to sort out.

In the end, the Internet Radio Fairness Act marks a move in the wrong direction. Rather than readjust rate standards for webcasting, Congress should seek to reduce regulation in this space for all music services. The ultimate aim of federal policy for digital music content and copyright licensing royalties should be a truly free market. That means eventual elimination of compulsory licensing and ratemaking.

In the New Year, FSF hopes to continue addressing some of the basic constitutional and free market principles that should guide any transition to a free market in digital music content.

Google Confronts Legacy Telecom Regs

Scott Cleland has a good piece in his "obsolete law" series demonstrating why it is important to get rid of outdated legacy regulations.

His blog discusses how Google declined to offer phone services in connection with its touted fiber project in Kansas City when it discovered how costly compliance with the existing rules would be. Not worth the incremental cost in Google's view.

I don't advocate saddling Google with legacy telecom regs, but I do advocate -- as does Scott -- getting rid of them.

The FCC, Merger Reviews, and Job Protection Pleas

On November 26, Seth Cooper and I filed comments in the FCC's proceeding evaluating the proposed merger between T-Mobile USA and MetroPCS. In the comments we said: 

"By combining MetroPCS's spectrum, wireless infrastructure, and other resources with its own, T-Mobile seeks to speed up and expand its deployment of 4G LTE services to meet growing demands for data-rich wireless broadband services. Consumers stand to gain from a more rapid migration to next-generation wireless services resulting from the proposed merger." 

Consistent with our usual practice, we did not specifically endorse the proposed transaction as a bottom-line matter. But we did conclude that, "considered in a proper analytical framework, this proposed combination will likely improve the competitive standing of T-Mobile/MetroPCS in reaching wireless consumers across the nation and thus serve the public interest." 

The Communications Workers of America has submitted comments arguing the FCC should not approve the transaction absent imposing certain conditions to protect the jobs of its members. Specifically, CWA wants the Commission to adopt the following "enforceable" conditions: (1) No U.S. employee will lose a job as a result of the transaction; (2) Network maintenance will continue to be provided by U.S. employees; and (3) Work previously sent offshore by T-Mobile and MetroPCS will be returned to the United States. CWA is especially concerned that the merger applicants claim the combination will allow them to achieve certain "synergies" and "efficiencies," which CWA says are euphemisms for job losses. 

No one wants to see people lose jobs, especially in today's difficult economy. I certainly don't. Nevertheless, CWA's request for job protection conditions is out of place in the merger proceeding. 

It is true that FCC decisions can impact the overall economy and jobs. Regulations that are unduly costly or overly burdensome will deter investment and innovation, adversely impacting job creation, at least over time. Conversely, sound regulatory policies, if they are narrowly tailored to redress real market failures and demonstrable consumer harm, and if they are subject to rigorous cost-benefit analysis, may have a positive impact on investment and innovation, thereby promoting job creation over time. 

But acknowledging that FCC actions may have a positive or negative impact on the nation's economy and employment levels is a far cry from acknowledging the Commission should be in the business of sanctioning job protection plans in connection with its merger reviews. 

It should not be. 

We already have a Department of Labor in the government, and the FCC should not abuse its merger review process by acting as if we need another one. 

There is an increasingly broad consensus that the FCC, especially in recent years, abuses its merger review authority by extracting various "voluntary" conditions from the merging parties before it will approve the proposed transaction. Because the merger applicants, often held in limbo awaiting Commission action for up to a year, are at the Commission's mercy, it is easy for the agency, employing the indeterminate public interest standard, to extract the last-minute "voluntary" conditions. And the worst part is that the so-called voluntary conditions may have little or no relationship at all to the claimed competitive effects of the proposed merger. 

Carried out in this way, with the Commissioners or their staffs suggesting, with a wink and a nod, that it might be "helpful" if certain conditions are proffered, the merger review process has an unseemly air about it. Several years ago I called the process a "bizarre bazaar," and I didn't mean it as a compliment. Over twelve years ago, I proposed reforms to the review process in a Legal Times piece, aptly titled, "Any Volunteers?" And in 2005, this National Law Journal piece titled "Reform the Process" argued for reform of the review process. 

Ultimately, what is needed are Communications Act revisions that restrict the FCC's merger review authority so the Commission does not duplicate the work of the antitrust authorities, or that at least require the agency largely to defer to the antitrust agencies' expertise. The FCC's authority should be limited to ensuring that, if the merger is to be approved, the post-merger entity will be in compliance with all existing statutory and regulatory requirements. 

But what is needed in the short-term, indeed right now, is for the FCC to exercise regulatory self-restraint. This means the agency should reject special pleading like CWA's (or anyone else's) to hold the merger hostage to extraneous conditions. While the CWA is correct that, on at least one past occasion, the FCC succumbed to pressure (or the temptation) to include a jobs protection provision (a requirement to repatriate jobs that had been outsourced) as a merger condition, it should not do so again. 

As I said above, there is no gainsaying that the FCC's regulatory policies may impact job creation, for good or for ill. Regulatory policies that are narrowly tailored and properly limited to ensure that their costs do not exceed their benefits may, in instances of real market failure, be consistent with job creation. 

If the FCC unwisely wants to venture into the domain of considering job protection plans, for example, plans that prohibit offshoring or that require that no U.S. employee lose his or her job, the agency should do so only in the context of an industry-wide generic proceeding. I would vigorously oppose the adoption of such rules as surely harmful and most likely unlawful, but at least the FCC would not be singling out particular parties in the context of a merger proceeding. 

In my view, in the context of the current market environment, I see no reason for the FCC to stand in the way of the proposed T-Mobile-MetroPCS merger. But I readily confess I have no idea whether, in this specific instance, the efficiencies and synergies claimed by the applicants will result, ultimately, in more or less jobs for CWA workers. I suspect that, over time, if the combined entity proves to be a strong marketplace competitor – stronger than if T-Mobile and MetroPCS remain apart – more jobs will be created than lost. 

Be that as it may, the FCC has no business abusing its merger review authority by conditioning the merger on adoption of the job protection plan put forward by the CWA. Regardless of whether the Commission has abused its authority this way in the past, such a condition is simply too far afield from any legitimate view of the Commission's exercise of its merger review responsibilities.

WCIT 2012: Observations and Lessons

With the opening of WCIT 2012 today, presumably the U.S. delegation (and interested U.S. parties) are safely ensconced in Dubai and ready for action. Readers of this space know that WCIT is the acronym for the World Conference on International Communications convened by the International Telecommunications Union, an organization with 193 member countries established under the auspices of the United Nations. 

In the past couple of weeks, much has been written about the possible perils to the Internet posed by proposals put forward by some countries. These perils include proposed changes to the Internet's prevailing mode of governance, along with forced changes to its existing technical operations and economic arrangements. And they include proposed changes that would diminish the Internet's utility as a platform for the free exchange of information. Because the potential threats are real, and because some proposals, if adopted, would fundamentally alter the character and working of the Internet, it is understandable that alarm bells have been ringing. 

Indeed, the Free State Foundation held a seminar at the National Press Club back on May 30 to address the potential adverse impacts from the WCIT 2012 conference. We were pleased to have FCC Commissioner Robert McDowell and Richard Beaird, Senior Deputy United States Coordinator for International Communications and Information Policy at the Department of State, as speakers, along with other notables. We also were pleased that C-SPAN appreciated that the seminar was important enough to be broadcast live. You can find the C-SPAN video here. And a complete transcript of the proceedings is here. 

I don't want to repeat at any length the various points made by many of my think tank colleagues and others over the past few weeks, but rather offer a few observations to highlight certain points, especially points that translate into lessons that ought to be instructive going forward. 

First, having in mind the various proposals that have raised concerns – ranging from proposals to amend the ITU international telecommunications regulations to give sanction to outright government censorship of free expression on the Net to others that would sanction new forms of economic and/or technical Internet regulation, it is important not to lose sight of this central point: What is at stake is the continued existence of the current bottoms-up, privatized, multi-stakeholder Internet governance model as opposed to one featuring top-down government controls. In this regard, recall that the proposals to be offered at the WCIT are to amend the "international telecommunications regulations" adopted in1988 when generally monopolistic telecommunications services were offered, at least in most countries around the world, under stringent regulatory controls. 

Second, FCC Commissioner Robert McDowell, who more than anyone else early on sounded alarms concerning the potential for WCIT mischief, points out, correctly, that proposals in international forums to abandon the current multi-stakeholder Internet governance model are likely to be ongoing. So, when the U.S. delegation heads home after Dubai, hopefully with a successful result, there will be no reason to celebrate any "final victories." Continued vigilance will be required.  

Third, the broad bipartisan support for the U.S. position opposing proposals inconsistent with the current privatized, multi-stakeholder model has been commendable – not only commendable, but important in strengthening the United States' bargaining position. All FCC commissioners, regardless of party, oppose changes to the ITU regulations that would sanction increased government control of the Internet. Both the House of Representatives and a Senate panel unanimously adopted resolutions expressing support for maintaining the current governance model and urging a hands-off ITU regulatory policy. 

In today's dynamic, competitive communications marketplace, this broad bipartisan support opposing WCIT-sanctioned control of Internet providers ought to translate into a shared commitment by our U.S. policymakers that, absent market failure and demonstrable consumer harm, Internet providers should not be subject to government-imposed common carrier-like regulations. This means they should not be subject to FCC net neutrality mandates that resemble legacy regulations applied to last century's common carriers a la the ITU's international telecommunications regulations. It was the Clinton Administration that forcefully articulated this deregulatory position in a White Paper as the Internet developed in the 1990s, and it deserves much credit for doing so. If the U.S. is going to lead the fight for a deregulatory Internet governance model around the world, it should make sure it leads by example here at home. 

I have no doubt that the U.S. delegation in Dubai will work hard to preserve the privatized, multi-stakeholder Internet governance model by opposing changes to the ITU telecommunications regulations that would give international sanction to top-down government control of the Internet or that would give official sanction to government censorship of free expression. 

We should commit to working equally hard here at home to do the same.