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MEDIA ADVISORY January 31, 2014
Contact: Randolph May at 202-285-9926
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Free State Foundation Scholars Respond to the House Committee on Energy and Commerce's First White Paper, "Modernizing the Communications Act"
Free State Foundation President Randolph May and distinguished members of FSF's Board of Academic Advisors Richard A. Epstein, Justin (Gus) Hurwitz, Daniel Lyons, James B. Speta, and Christopher S. Yoo submitted a Response today to the first White Paper, "Modernizing the Communications Act," before the House Committee on Energy and Commerce, U.S. House of Representatives. Each of the signatories to the Free State Foundation's Response is a widely recognized expert in the field of communications law and regulatory policy. Each has published articles in many academic journals and other publications on the subjects addressed in the Response.
Immediately below is the Summary of the Free State Foundation scholars' response. A PDF of the complete Response is here.
- In updating the Communications Act, a clean slate approach is needed to adopt a "replacement" regime - a new Digital Age Communications Act, if you will - because the new act should be much different in concept and structure than the existing one.
- Generally, the broad delegation of indeterminate authority to the FCC to regulate "in the public interest" should be replaced with a marketplace competition-based standard, so that, except in limited circumstances, the FCC's regulatory activities will be required to be tied to findings of consumer harm resulting from lack of sufficient competition.
- With a competition regulatory standard in place that is generally applicable to all entities providing electronic communications subject to the Commission's jurisdiction, the existing "silo" regime, which results in the regulation of entities providing comparable services in a disparate manner, should be eliminated in favor of FCC authority over all electronic communications networks.
- The FCC's authority to adopt broad anticipatory rules on an ex ante basis should be substantially circumscribed, and agency rules should be sunset after a fixed number of years absent a strong showing at the sunset date that they should be continued; the Commission should be required to rely more heavily than is presently the case on adjudicating individual complaints alleging specific abuses of market power and consumer harm.
- To a significant extent, the FCC's structure as a matter of form in an institutional sense will be dictated by the structure of the new act and the fundamental decisions made regarding the agency's role. The new act should require that the agency adhere to certain process reforms such as those contained in H. R. 3675, the "Federal Communications Commission Process Reform Act of 2013." With respect to jurisdiction, certain matters (for example, privacy and data security regulation) currently under the FCC's jurisdiction should be transferred to the FTC because those matters are closer to the FTC's core institutional expertise and because consolidating such jurisdiction in the FTC makes it less likely that various providers of comparable services in the overall Internet ecosystem will regulated in a disparate fashion. Finally, the authority of the states to engage in economic regulation of service providers should be circumscribed in the new act.
- In drafting a new act, one guided by these foundational principles, the concept of "simplicity" should remain an important goal. In the Fourteenth Century, William of Ockham wrote: "What can be explained on fewer principles is explained needlessly by more." This theorem became know as Ockham's Razor. In drafting a new act, the Razor should be kept close at hand.
Randolph J. May, President of the Free State Foundation, is a former FCC Associate General Counsel and a former Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. Mr. May is a public member of the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
Mr. May is a nationally recognized expert in communications law, Internet law and policy, and administrative law and regulatory practice. He is the author of more than 150 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the editor of the new book, "Communications Law and Policy in the Digital Age: The Next Five Years." He is the author of A Call for a Radical New Communications Policy: Proposals for Free Market Reform. And he is the editor of the book, New Directions in Communications Policy and co-editor of other two books on communications law and policy: Net Neutrality or Net Neutering: Should Broadband Internet Services Be Regulated? and Communications Deregulation and FCC Reform.
Biographical sketches for members of the Free State Foundation's Board of Academic Advisors are here. The Free State Foundation is a non-profit, independent Section 501(c)(3) free market-oriented think tank. 
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The Free State Foundation
P. O. Box 60680
Potomac, MD 20859
Tel: 301-984-8253
Fax: 301-299-5007
www.freestatefoundation.org
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