The PATRIA Y VIDA Act Would Help Defeat Despotic Restrictions on Internet Access

Today, Sen. Marco Rubio introduced the Protecting Against Tyrants by Restoring Internet Access and Yielding Vital Interconnectivity in Designated Areas Act – or PATRIA Y VIDA Act. In the words of Sen. Rubio's press release, the bill would "build a strategy to protect internet freedom worldwide and strengthen support for technologies that allow users to evade foreign government-backed censorship and restrictions." The legislation would require the federal government to support and deploy Internet censorship circumvention technologies so that people located in foreign nations Cuba and China that are subject to authoritarian rule can access information. The bill's title commemorates the Cuban peoples' protests from July of this year against their despotic leaders who censored Internet access in that country. 

Sen. Rubio surely is right that the PATRIA Y VIDA Act is important legislation. The Senate should promptly take up consideration of the bill, which would direct the U.S. to do more to push back against despotic foreign regimes.

Don't Forbear Any Longer From Forbearance Reform!

There is a growing consensus that a new Digital Age Communications Act is needed that reflects the technologically dynamic, increasingly competitive digital age communications marketplace. The current "smokestack" regime, grounded in outdated techno-functional constructs that apply differential regulatory burdens to comparable competitive services, needs to go.   

But it is also pretty clear that it may be some time before the growing consensus leads to adoption of the necessary radical overhaul of the current law. 

In the meantime, Congress could simply modify one provision of the current law to require the Federal Communications Commission to act in a less regulatory fashion than the agency generally does now. 

Two years ago this month I published a Free State Foundation Perspectives entitled, "A Modest Proposal for FCC Regulatory Reform: Making Forbearance and Regulatory Review Decisions More Deregulatory." There I suggested that Congress amend the Communications Act's forbearance provision to make forbearance relief the viable deregulatory tool Congress intended when the Telecommunications Act of 1996 added the provision to the law. 

Section 10, the "forbearance provision," mandates that the Commission "shall forbear" from applying any regulation or statutory provision if the agency determines enforcement of such requirement "is not necessary" to ensure that a telecommunications carrier's charges and practices are reasonable and "not necessary for the protection of consumers," and that forbearance is consistent with the public interest. 

This provision is unique among regulatory statues, and Congress obviously intended the FCC to use it as a deregulatory tool. For example, under the provision, if the Commission does not deny a forbearance petition within the requisite statutory period, it is "deemed granted." In other words, by its terms, the statute evidences a deregulatory intention. 

As we have detailed over the years at the Free State Foundation, the FCC has employed its forbearance authority too sparingly, often refusing to acknowledge new realities that, in effect, mean consumers can be protected more effectively by the competitive marketplace than by outdated legacy regulations. For example, as my colleague Seth Cooper has demonstrated in "Forbearance Follies" and elsewhere, in denying several petitions for forbearance relief the agency simply dismissed wireless service as a competitive alternative to wireline service. The Commission acted this way despite the fact that over 30% of U.S. households have discontinued their wireline service. 

As I suggested in April 2011, to redress the FCC's reluctance to grant warranted regulatory relief, a sentence could be added at the end of Section 10(a) to the effect that: "In making the foregoing determinations, absent clear and convincing evidence to the contrary, the Commission shall presume that enforcement of such regulation or provision is not necessary to ensure that a telecommunications carrier's charges or practices are not unreasonable or unreasonably discriminatory or necessary for the protection of consumers and is consistent with the public interest." 

I explained in the "Modest Proposal" essay that establishing such an deregulatory evidentiary presumption in Section 10 "would not dictate the outcome of the Commission's assessment of any particular forbearance petition." That is not the intent. 

"But the presumption would require the Commission to grant regulatory relief absent the presentation of convincing evidence to the effect that the requisite consumer protection and public interest showings have not been made. This should make it more difficult, for example, for the Commission to ignore or minimize the significance of evidence of wireless substitution for wireline in performing a competition analysis." 

I made in clear in a blog posted in May 20111 that the amended forbearance provision incorporating the deregulatory evidentiary presumption should apply not only to telecom carriers, as is presently the case, but as well to cable operators and other entities regulated by the Commission. There is no reason that any entity subject to a Commission regulatory mandate should not be eligible to seek relief. 

It is a hopeful sign that there is increasing support for reform of the forbearance process as a means of granting regulatory relief when justified by competitive marketplace realities. In his superb keynote address at FSF's March 21 Fifth Annual Telecom Policy Conference, I was especially gratified that Senator Marco Rubio declared that the forbearance process should be reformed "so it is more difficult for the FCC to reject regulatory relief petitions when they are justified." This is exactly right. 

And, along the same lines, in his Conversation with me, Commissioner Pai stated that there is "no question the telecommunication marketplace in particular has undergone revolutionary change" and that it "is much more competitive than it has ever been." He agreed that my forbearance proposal was "interesting" because the Commission should be "more liberal in its application of forbearance authority." 

Immediately below, and also here, are links to the videos of Senator Rubio's keynote and the Conversation with Commissioner Pai. Of course, in addition to the remarks relating to forbearance, there is much more of value for those of a reform-minded bent. 

But, today, I am focusing on reforming the Communications Act's forbearance provision by inclusion of a deregulatory evidentiary presumption along the lines I have suggested in my proposal. 

Pending a much-needed wholesale overhaul of the Communications Act, reforming the forbearance process offers an interim avenue for spurring the FCC, more regularly, to grant justified regulatory relief that comports with the competitive realities of today's digital marketplace environment. 

I hope some reform-minded Senator or Representative – or a whole group of them – will pick up the reform cudgel and lead the effort. 

 

Reconciling Regulatory Certainty and Market Unpredictability

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.

Closing Remarks from Balir Levin

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. Senate Rubio's Keynote Address