The
videos are up from the Free State Foundation’s seventh annual telecom policy
conference entitled “The Future of the Internet: Free Market Innovation or
Government Control?” The distinguished series of panels and speakers delivered
wonderful discussions and statements on various issues within
telecommunications policy.
In
one of the panels, Free State Foundation President Randolph May had the privilege
of speaking with FCC
Commissioners Ajit Pai and Michael O’Rielly. The conversation covered many
aspects of the FCC’s Open Internet Order and its preemption of state laws
restricting municipal broadband in North Carolina and Tennessee.
When
asked which part of the FCC’s Open Internet Order is most troubling, Commissioner
Pai said the reduction in broadband competition that will result from massive cost
increases is most concerning. Commissioner O’Rielly, on the other hand, finds
the uncertainty resulting from the general conduct standard most troubling.
About 10 minutes
into the video, Commissioner Pai spoke out against the advisory opinions of the
Open Internet Order:
The key to American entrepreneurship and innovation, I
would think, is the fact that we’ve generally had an approach of permissionless
innovation - that entrepreneurs don’t have to go to regulators, who stand as
gatekeepers, who decide ultimately which business models are going to be
allowed to proceed and which are not allowed to proceed.
I think the danger of this enforcement bureau advisory
opinion is twofold. Number One - that it represents the very essence of
innovation by permission. And secondly, it is also done by delegated authority.
The five commissioners themselves will never have a chance to weigh in on some
of these innovative services and products that may come before us.
The two
Commissioners not only expressed concern that this Order went beyond the FCC’s
authority, but they questioned the need for Internet regulations in general. Around
the 17 minute mark, Commissioner Pai stated:
The predicate for regulation should be the existence
of a problem that can be demonstrated with some specificity and it, generally
speaking, should be industry-wide to the extent that we are adopting
industry-wide regulations. But if you look at the Order, all you see is
isolated niche examples that don’t suggest anything about a current market
failure.
Commissioner O’Rielly
added that the FCC has gone way beyond its authority and that the Order lacks
any limitations to that authority:
[The
order] is a double layer [of Title II and Sec. 706]
with
no limitation.
In
terms of wireless regulation, Commissioner O’Rielly questioned the consistency
of the FCC. He mentioned that the FCC generally would not include wireless in
its broadband statistics because it did not consider wireless a broadband
service. Yet, when it came to rulemaking, the FCC thought wireless should be
regulated with wireline broadband services.
Many of the Order’s
opponents have expressed concern about how these rules will shape the
perception of the United States on the international stage. Now that the United
States has adopted strict Internet rules, it likely could lead to other
countries, who have not done so already, adopting similar Internet regulations.
Of course, violations of free speech and content control are some of the foreshadowing
consequences of government regulation of the Internet. Approximately 30 minutes
into the video, Commissioner O’Rielly said he is “very worried about the
international implications of this decision.”
Around the 36
minute mark, the conversation changed to the forbearance process. Commissioner
O’Rielly described why he thinks this Order does not allow for a forbearance
process, but instead a “fauxbearance” process:
The Commission is saying - the only thing we really
need is 201…because we can doing anything we want under 201, under just and
reasonable. And in that scenario, there is no forbearance. Every situation that
they can envision being tripped up in another provision can be dealt with in
201. So I don’t see any argument that this is light touch. It’s the opposite.
Finally, around
the 45 minute mark, the conversation switched to the preemption of state laws
restricting municipal broadband in North Carolina and Tennessee. Commissioner
Pai stated that the FCC does not have the legal authority for preemption:
To
me, the most problematic aspect was that it was
unlawful.
I think it’s pretty clear that if Section 253 didn’t
serve as a sufficient basis for having clear statement that Congress intended giving
the FCC preemptive authority, there is no way Sec. 706 did.
Commissioner O’Rielly,
on the other hand, said that the idea of the government acting as a competitor
in the broadband service market does not sit well with him:
On the policy merits, I do not agree with municipal
broadband. I think it’s an affront to capitalism. I do not think it should be
allowed, but that is not my decision to make. That is for states and others to
make.
The FCC’s Open Internet Order was a popular topic at the conference
but other topics such as video policy, spectrum auctions, and universal service
were also discussed. Check out and subscribe to the Free State Foundation’s YouTube page for
more videos from the conference and past events.
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