Reboot the FCC? No, debug the problem

Larry Lessig has a very interesting article in Newsweek, “Reboot the FCC.” The essence is that the FCC is inevitably bound by regulatory capture. He proposes a new agency with three tasks:

  1. “The iEPA’s first task would thus be to reverse the unrestrained growth of these monopolies.”
  2. “The iEPA’s second task should be to assure that the nation’s basic communications infrastructure spectrum— the wires, cables and cellular towers that serve as the highways of the information economy—remain open to new innovation, no matter who owns them.”
  3. “Beyond these two tasks, what’s most needed from the iEPA is benign neglect.”

The EPA is an interesting choice as a model. They are responsible for a couple of major laws, including the endangered species act and the clean air act. The clean air act, from 1970 to 1990, froze in place specific emissions control technology. It was clear by the late 1980s, when I was studying environmental science, that the act was compelling businesses to spend more money than they needed to. It took another decade to revise the act. The endangered species act centers around the “taking” of members of listed species. The act defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a species. I believe it was the Fish and Wildlife Service that went on to define habitat modification as a taking under the ESA.

I raise these because there are substantial difficulties in defining a law which does what we intend with minimal ill consequences. I think those difficulties are greater when the impact of the law will be slow and hard to observe. The clean air act kept our skies dirtier than they needed to be (but likely cleaner than without any clean air act), while almost no endangered species has ever left the list.

So before we go creating a new agency, I’d like to challenge Larry to create a controlling law, so we can analyze what chaos might emerge from it. Let’s set up a wiki and have at the definition of a law. Let’s have a discussion in more depth than the Newsweek article.