Milton Friedman once quipped that “Nothing is so permanent as a temporary government program.” Perhaps he would add the outmoded idea of the “public interest” as used by the FCC if he were still alive today.
On May 23, the New America Foundation, in coordination with Public Knowledge and the Rutgers Institute for Information Policy and Law, held an event titled Broadcast to Broadband: New Theories of the Public Interest in Wireless. Unfortunately, though, no new theory of the public interest was forwarded. Instead, there was a rehashing of the same tired clichés about universal service, localism, and diversity. All of the participants — panelists, speakers, and questioners—were united in the belief that basic public interest notions currently followed by the FCC in the broadcast realm should be extended into the broadband realm.
The event kicked off with a keynote address from Larry Irving, the President & CEO of Irving Information Group and former head of NTIA. Right after quoting Steve Jobs for inspiration to “think differently,” Irving stated this:
“We don’t need a new theory of the public interest, some things are just classic. A 1964 Ford Mustang, a Chanel little black dress, Marvin Gaye’s What’s Going On when you have a woman in a Chanel little black dress somewhere…”
Just like those classics, the public interest standard could be “tweaked” or “changed” but it cannot be improved upon. Despite then immediately admitting that technology is outstripping policy, Irving went on to define the public interest in classic FCC fashion: universal service, diversity, and localism.
Attempts to define public interest never got much better than this. One panelist, Andy Schwartzman from the Media Access Project, alluded to Donald Rumsfeld to emphasize the importance of “fighting the war with the army we have.” Bowing to political realities, he thought it would be best to create policies for the wireless world that forward the traditional standard. He included network neutrality, a use it or lose it spectrum policy, and other centralized solutions. Another panelist, Mark Lloyd of the FCC, thought that those who did not understand what public interest means should simply think of Larry’s “beautiful woman in a little black dress and a classic Mustang” because then “we would have a clear sense of the public interest.”
After noting that the title for the event was on new theories of the public interest, one of the questioners asked “How do you define ‘new’? Because… I’ve been to hundreds of these events… and I don’t think I’ve heard any idea I haven’t heard dozens or hundreds of times.” No direct response to this question was given.
So what’s wrong with this “classic” public interest standard? There are three main objections: (1) the vague definition of public interest offered above is a moving target which has changed over time; (2) the application of this standard even in the broadcast realm is problematic; and (3) the extension of this standard into the wireless realm is impractical and unnecessary.
First, as recognized by authorities as diverse as Adam Thierer and New America Foundation’s own policy paper handed out at this event, the definition of the public interest has consistently changed over time, “often in response to electoral changes and political whims.” Even former FCC chairman Reed Hundt described the standard as “vague, general, [and] amorphous.”
Second, each of the three major components listed above and others, such as children’s programming, access, and competition, are all objectionable even as applied to broadcast media. Scholars have made compelling arguments that these interventions do not lead to the results intended and restrict innovation and competition.
Finally, the extension of these outmoded ideas into to the wireless realm is both unnecessary and impractical. As recognized by many of the speakers at the New America Foundation event, the dynamic innovations created by entrepreneurs have brought about many of the “public interest” goals they desire in public policy. For instance, increasing access to the internet was not brought about by government mandate, but by Smartphones and other devices with connectivity, and increased diversity in user-generated content on YouTube was not due to a regulation.
Further, in light of the convergence of technology and media, there is a large scale and volume problem with any attempts to regulate broadband. As argued by Thierer, “media can be distributed instantaneously across numerous platforms. Thus, a regulatory attack on one type of media outlet or technology might necessitate an attack on many other media outlets if it has any hope of being effective.” And as old media providers struggle to compete with upstart rivals, new regulations may prevent them from being able to innovate.
Someday, the FCC’s public interest standard will be considered as about as classic as the horse and buggy. In other words, it outlived its usefulness which was never all that useful to begin with.