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MEDIA ADVISORY               January 27, 2016

Contact: Randolph May at 202-285-9926

FSF's Randolph May: "The FCC Should Not Regulate Video Navigation Devices"

In reaction to reports that the Federal Communications Commission is about to propose new regulatory mandates for set-top box video navigation devices, Free State Foundation President Randolph May issued this statement:

"With regard to regulating set-top video navigation devices, the FCC appears intent, like Captain Ahab, to keep pursuing the big White Whale - but in this case, the White Whale has long since become extinct. The video marketplace indisputably is now subject to effective competition, and this includes the navigation device market segment. To think otherwise, the agency would have to bury its head in the sand. The proliferation of new online video distributors (OVDs) and streaming media devices used to access such services is there for anyone to see - even for regulators bent on not relinquishing regulatory control. And the number of new streaming services and video devices is growing rapidly.

If the FCC moves forward to establish what in effect are new technical mandates, all the talk at the agency about 'permissionless innovation' will yet again be proven wrong. It is difficult for the FCC to even suggest that innovation in the video space is not occurring now in the absence of new government-dictated technical mandates.

There's another reason the FCC should not move forward as well. It's clear that government prescription of navigation device content, which is what the FCC will do as it determines acceptable presentation and menu formats and the like, violates the First Amendment free speech guarantee. This won't likely concern the Commission, but it should concern all those who care about keeping the government from dictating speech content and who respect the First Amendment.

In sum, if the FCC moves forward, this will be yet another case of intervening in the marketplace without any plausible claim of market failure or consumer harm. Indeed, consumers will be the ultimate losers from another attempt by the Commission to 'fix what ain't broken.'" 

 
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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 current 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 180 scholarly articles and essays on communications law and policy, administrative law, and constitutional law. Most recently, Mr. May is the co-author, with FSF Senior Fellow Seth Cooper, of the recently released The Constitutional Foundations of Intellectual Property and is the editor of the 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.
 
    
The Free State Foundation is a non-profit, independent free market-oriented think tank.

  
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