At the Free State Foundation's Fifth Annual Telecom Policy
Conference on March 21, Blair
Levin delivered the Closing Remarks. As most know, Blair, now a Fellow with
the Aspen Institute's Communications and Society Program, is the former
Executive Director of the FCC's National
Broadband Plan effort.
Over the years, Blair has spoken at several Free State
Foundation conferences and seminars, and I am grateful for his participation
again this year. As usual, his remarks were perceptive and thoughtful. Although
I sometimes disagree with Blair, even on some significant issues, he usually causes
me to think hard about what he has to say.
A video link to Blair's remarks is here and below.
But before you watch the video, I want to share my own
reaction to one of Blair's key points. He observed that, at past conferences,
there has been much talk about the need for regulatory certainty, while, at
this year's conference, a major theme was the problematic nature of regulating
at a time when it is so difficult to predict the future direction of dynamic markets.
In other words, there is a certain tension between two competing claims – Blair
put it in terms of "oscillation" between the two. On the one hand, the
benefit of regulatory certainty and, on the other, the benefit in not
regulating fast-changing markets whose parameters are difficult to predict.
I find the way Blair presented the notion of the supposed
tension between the two "oscillating" claims thought-provoking. It is
surely true that we sometimes hear, especially from parties subject to the
FCC's regulatory reach: "Just tell me what I can do or not do, one way or
the other, so I'll know how to plan my business." As Commissioner Pai and
I discussed during our Conversation,
this notion regarding the desirability of certainty is captured by one of Yogi
Berra's famous sayings, "When you come to a fork in the road, take
it."
Nice aphorism.
But I think the tension between the oscillating claims is
exaggerated, and even may completely dissipate, in this sense. While there may
be a certain value in regulatory certainty, no one seriously argues that
ill-conceived or unnecessary regulations are not harmful and costly. In other
words, we don't want the FCC to adopt ill-conceived or unnecessary regulations
just for the sake of imposing some notion of certainty.
The answer to resolving the supposed tension lies, I think,
in the FCC explicitly adopting a considerably more modest regulatory posture in
recognition of the existence of an increasingly more competitive, more dynamic
communications marketplace environment. In other words, in a sense that may not
have been true even a decade ago, the current acknowledged unpredictability inherent
in a changing marketplace – which Blair doesn't seem to dispute – should cause
the FCC to tilt in the direction of regulatory restraint.
During my Conversation with Commissioner Pai, I couldn't
resist quoting another Yogi Berra saying: "Predictions are tough if they
involve the future." Another relevant one: "The future ain't what it
used to be," which certainly calls to mind the communications marketplace
environment.
As appealing as they are, I am not suggesting we look to Yogi Berra's aphorisms to set regulatory
policy. But I am suggesting this: Now that it is widely acknowledged that unpredictable
communications markets, driven by fast-paced technological changes, are
increasingly competitive (even though the degree of competitiveness may be
subject to debate), the FCC's default position, more often than not, should be
to forbear from imposing regulation. For many years now, I have been suggesting
that, absent clear and convincing evidence of market failure or consumer harm,
the Commission's default position should be "do not regulate" – in
much the same way that we now understand the default position of the almost
2500-year old Hippocratic Oath: "First, do no harm."
To put a point on it, regulatory uncertainty may impose some
costs, but ill-conceived and unnecessary regulations almost always are more
harmful and costly than uncertainty. The best way for the FCC to reduce, if not
eliminate, the tension somewhat inherent between the two oscillating claims Blair
presented is for the Commission to default – consistently and explicitly – to
the "do not regulate" position in the absence of convincing evidence
of market failure. In other words, the bounds of the agency's all-too-often
unbridled administrative discretion should be narrowed in the cause of
regulatory restraint. This would respond to the need for as much certainty as
possible while, at the same time, avoiding the imposition of regulatory mandates
in the face of fast-changing markets.
A decade or two ago, this default deregulatory position may
not have made sense. But it surely does now.
Well, you can see that Blair once again provoked my thinking
with his constructive comments, which is exactly what I anticipated. Watch the
video, and you can decide for yourself.
PS - Blair also commented favorably on Sen. Marco Rubio's keynote address, especially commending its "spirit of optimism." If you were not in attendance, and haven't yet seen the video of Sen. Rubio's speech, I certainly commend it to you for its spirit of optimism, and for much more in the way of sound telecom policy.
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