Lessig: Abolish the FCC

On the eve of a new administration, Washington tech-policy folks are lining up their agendas in anticipation of the next iteration of the Federal Communications Commission.

Lawrence Lessig has a different idea: get rid of it.

The Stanford University law professor has penned a column for Newsweek arguing that the FCC is so beholden to powerful media and telecom lobbying interests who spend lavishly to preserve the status quo that it has had the effect of stifling innovation.

Lessig charges that the agency has become a political animal, with commissioners motivated by personal ambition and under the thumb of special interests. If it continues to act as a “junior varsity Congress,” Lessig said, the FCC could thwart the potential of exciting new technologies, such as the wireless “white-space” spectrum companies like Google fought so hard to liberate.

“With so much in its reach, the FCC has become the target of enormous campaigns for influence,” he wrote. “Its commissioners are meant to be ‘expert’ and ‘independent,’ but they’ve never really been expert, and are now openly embracing the political role they play.”

Lessig called on President-elect Obama to dismantle the FCC, along with “similar vestigial regulators.” On their ashes, he proposes a new agency, the Innovation Environment Protection Agency (iEPA), founded under the mantra “minimal intervention to maximize innovation.”

“The solution here is not tinkering. You can’t fix DNA. You have to bury it,” Lessig said. “The iEPA’s core purpose would be to protect innovation from its two historical enemies — excessive government favors, and excessive private monopoly power.”

Lessig’s indictment of the FCC as an institution follows a scathing Congressional report blasting Chairman Kevin Martin for imbuing the agency with a culture of secrecy and suspicion.

Lessig, who recently said he would leave Stanford for a position at Harvard University, had been rumored as a potential candidate for the government CTO position that Obama said he would create.

Lessig looks back at the FCC’s loosening restrictions on media ownership and the recent 700 MHz spectrum auction, which was dominated by Verizon Wireless and AT&T, as examples of the FCC kowtowing to powerful corporate interests. The resulting monopolies, he argued, have stripped the marketplace of legitimate competition. Lessig adds his voice to the many progressive advocacy groups that have been calling on the FCC to guard against telecom and media consolidation.

But regulation would only play a minimal role in the successor to the FCC that Lessig envisions. Rather, through a policy of “benign neglect,” the iEPA would stimulate innovation by decoupling industry from government.

Just as Obama has pledged that active lobbyists will not serve in his administration, Lessig suggested that the iEPA would have a strict policy against staffers with industry ties.

Those safeguards, he said, are necessary to reverse a climate where “corporate America has come to believe that investments in influencing Washington pay more than investments in building a better mousetrap. That will only change when regulation is crafted as narrowly as possible.”

Any discussion of innovation and technology policy is bound to veer into the debate over network neutrality. After all, Net neutrality supporters argue that if ISPs are allowed to discriminate against certain traffic on their networks, the taproot for innovative Internet startups will dry up.

Lessig, who has been an outspoken supporter of Net neutrality, has moderated his position somewhat.

“‘Network neutrality’ rules, when done right, aim simply to keep companies like Comcast and Verizon from skewing the rules in favor of or against certain types of content and services that run over their networks,” he said.

“Such regulation need not, in my view, go as far as some Democrats have demanded,” Lessig continued. “It need not put extreme limits on what the Verizons of the world can do with their network — they did, after all, build it in the first place — but no doubt a minimal set of rules is necessary to make sure that the Net continues to be a crucial platform for economic growth.”

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