The FCC Doesn't Need to Be

Why we should abolish the Federal Communications Commission

As exercises in bureaucratic hairsplitting go, it is tough to beat the sheer audacity of Federal Communications Commission Chairman Julius Genachowski's recent declaration, "I've been clear repeatedly that we're not going to regulate the Internet." In reality, between its recently released National Broadband Plan and proposed Net neutrality guidelines, that's exactly what the agency is planning to do.

The FCC doesn't have clear legal authority to regulate the Internet—in court filings, it has relied on the dubious concept of "ancillary jurisdiction," so it's not surprising that Mr. Genachowski doesn't want to be seen as the No. 1 Net Nanny. And it is telling that not even the head of the FCC wants to court the public perception that Washington is sending bureaucrats to meddle in the nation's communication networks. Indeed, Mr. Genachowski has inadvertently raised the issue of his agency's fundamental value, or lack thereof. Step back, and the real question isn't whether the agency has the authority to regulate the Internet—it's why the FCC has authority to regulate anything.

Forget the agency's $338 million price tag for a moment and ask, "What does the FCC do?" Its task is to oversee the nation's communications infrastructure—which, these days, means everything from TV and radio to wireless phones and Internet connections. But how many of these tasks constitute core government functions? From nagging the Net to regulating broadcast speech, just about everything the FCC does is either onerous or ineffective. Either way, it's unnecessary.

Take its role as broadcast censor: The agency has spent years enforcing an arbitrary, inscrutable code governing what speech and images are acceptable. Are four-letter words forbidden or not? Which ones? And when? What about breasts or bottoms or lower backs? Does it matter if the context is medical, accidental, or unattractive? The FCC's answer to all of those questions is yes, no, maybe, or all three, depending on whether the words and pictures in question meet its definition of indecency. But that test is performed using guidelines that are clear as mud: "An average person, applying contemporary community standards, must find that the material as a whole appeals to the prurient interest." Who counts as an average person? And how is one to determine current community standards in a country that contains both the joyous vulgarity of downtown Manhattan and the quiet piety of Pennsylvania's Quaker communities? The answer, unfortunately, is that these judgments are left to the FCC's whim.

But its rules are not only capricious, they are of dubious constitutionality. The Supreme Court ruled in a 5-4 decision last year that the FCC has the power to fine broadcasters for so-called "fleeting expletives"—expletives used as exclamations on live TV, for example. But the court did not definitively settle the First Amendment implications of allowing a federal agency to censor broadcasts. The judgment here should be a no-brainer, and one upon which liberals, libertarians and conservatives can all agree: When it comes to speech, Washington should have no power to decide what is, or is not, permissible.

The FCC's entire approach is to rule by impulse and expand its reach whenever and wherever possible. Recent FCC actions include investigating the approval process Apple employs in its iPhone App Store, mulling whether and how phone companies might upgrade their networks and passing judgment on various consumer devices of minimal likely importance, such as the Palm Pixi.

When the FCC was launched in 1934, backers argued that airwave scarcity justified its existence. In an age of information overload, with a nearly infinite array of media choices available to anyone with a mobile phone or broadband connection, no such argument can be made. Yet rather than shrinking, the FCC has ballooned, growing its budget by more than 60 percent between 1999 and 2009.

If something exists anywhere near the realm of technology or communications, the FCC tries to make it its business. But to what end? And at what cost? A 2005 study by economist Jerry Ellig estimated FCC regulations cost consumers up to $105 billion a year in additional costs and missed services. Throw in its own $338 million budget, and it is time to pull the plug on the FCC.

Peter Suderman is an associate editor at Reason magazine. This article originally appeared in The Washington Times.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • The Libertarian Guy||

    Still waiting for the FCC to serve a fine against Joe Biden for his on-air profanity recently...

  • Tim||

    Thank goodness it was just the F-Bomb and he didn't yank out Obama's tit.

  • Bill Clinton||

    Don't remind me of my wardrobe malfunction

  • Blue dress||

    It is permanently stained into my mind

  • The Gobbler||

    It's been mention here before, But regarding the wardrobe malfunction, DL Hugley said, "The majority of comercials during the Superbowl are for Beer and Viagra. If I'm gonna spend all day drinking beer and eating viagra, at some point I'm gonna need to se a titty."

  • jk||

    You would expect a liberal to be held to the same standards an everyone else?
    Please...

  • stuartl||

    When the FCC was launched in 1934, backers argued that airwave scarcity justified its existence.

    Isn't this still a useful function? Having a defined frequency allocation (by whatever means) is a good thing.

    Everything else, not so much.

  • ||

    ""Isn't this still a useful function? Having a defined frequency allocation (by whatever means) is a good thing.""

    Yes it is, licensing ham users isn't bad either. There's been several cases where state or local law enforcement wanted to ticket people with a mobile radio in there car, claiming it can listen to police scanners without knowing if it can or can't. Having a federal license has been a plus in these cases.

  • T||

    Wait, it's illegal to have police band scanners in your car? I guess that whole rule about if you don't want people to know it, don't broadcast it doesn't apply to the cops?

  • some ham||

    The only thing you are not allowed to receive is cellular telephone transmissions, radios cannot be sold/modified to do so in the US. The DMCA also applies to encrypted/scrambled transmissions.

    Therefore unless the police are using encrypted radio (why would they?) you are OK by federal law, some states may vary though.

    Also a few states do not allow using scanners in a vehicle without a FCC license or job requirement.

  • ||

    That should be the FCC's only function - that of a spectrum librarian and cop. Actual testing of devices has been done, rather sucessfully IMO, by the private sector for years. Amazingly, this is one those few functions of the federal government where they actually have some legitimate Constitutional authority to regulate. The airwaves are definitely very interstate in nature, and chaos would negatively affect commerce in and between states. Why they think there is some universal yet completely arbitrary content acceptablity limit is a mystery.

  • Brett Knoss||

    Before the FCC was launched in 1934 the ICC was responsible for regulating telephone netowrks and later radio broadcasting. As we all know concerns of samll truckers 1970's as hurting small buisinesses lead to the ICC having reduced power and being abolished in 1995. The same case can be made for abolishing the FCC.

  • Some Guy||

    Came here to say pretty much this. The FCC should have it's function vastly reduced, but other than just sticking the broadcast spectrum allocating/policing to someone else, I don't see how anyone could see the FCC's core function as unneeded.

    Alternatively, if we get do rid of it then I'm calling dibs on 700MHz.

  • ||

    While personally I would want them out of the picture, just taking away the power to control content would be enough for now.

  • ||

    You need an FCC to assign freqs and adjudicate interfence issues. That's all you need it for. Fifty quality radar/comm techs, an IT gal and two secretaries should just about cover it.

    Including office and travel expenses plus fully funded retirement and health insurance plans for employees, you can do the whole thing for < $50 million a year.

    FY 2010 FCC Fiscal Year 2010 Budget Estimates submitted to Congress in May 2009 - $335,794,000.

  • T||

    Just curious, J sub, but how do you deal with pirate broadcasters on somebody else's frequency allocation under your system?

  • ||

    Charge them with trespass.

  • ||

    What Warren said. You ID them and let the Justice Department prosecute. Really guys, this shit ain't even close to rocket science. It's frequency allocation.

  • ||

    I am a Ham radio operator. There is a nimrod who has decided against US law, and international treaties to start broadcasting on 14.275 MHz. The amount of recording work, and triangulation of antenna sources, and then proving which of the individuals with physical access to the transmitter was actually running the transmitter at a specific point in time that you are going to ask the DOJ to prosecute for, is immense. The reason for the FCC to exist is to have people who are legal specialists and technical specialists working together under the same boss so they can efficiently create the necessary smack down. Even so, the FCC takes a lot of time to get around to it.

    The censorship issue is something of a canard. The broadcast service was once part of the same structure as the amateur service and when the two were split for management reasons back in the 1920's, the two were structured the same.

    The Amateur band got the FCC as a the big dog, Official Observers (experienced Hams that monitored the amateur bands) were in place of the Broadcast Service's Standards and Practices people (both services are obliged to operate under sound engineering practices and appropriate standards).

    The commercial companies and the actors/entertainers that used these stations didn't want to abide by the S and P, and have eroded them to the point where the FCC has to step in every time, instead of only rarely as it was originally set up and as it does in the amateur side.

    If you don't like the FCC censorship, blame hollywood. Hate to tell you, but the companies chasing ratings and the bimbettes du jour chasing their next acting gig and willing to flash any part of their bodies to be seen as edgy are the ones who did you wrong.

  • ||

    I've 20 years experience dealing with RF interference issues. The ones the FCC deals with are bread and butter ones.

    Like I said upthread, it isn't complicated and don't try to pretend that allocation of freqs (if it's up to me, they're all up for bids, including your precious amateur bands) and enforcement of same is a difficult task. If the FCC hasn't located some guy broadcasting illegally it's because they aren't fucking looking for him. You can put DF equipment in a briefcase. Ooh ooh, triangulation (that's two guys in rental cars with GPS and cell phones for the unitiated) is soooo resource heavy.

    You don't have to catch somebody at the scene in the process, you take the xmitter if they want to play the cat and mouse game.

  • Brett Knoss||

    If your DF equipment is acurate enough you don't even need two cars just two attenas.

  • ||

    "If you don't like the FCC censorship, blame hollywood. Hate to tell you, but the companies chasing ratings and the bimbettes du jour chasing their next acting gig and willing to flash any part of their bodies to be seen as edgy are the ones who did you wrong."

    I grew up in the 90's when every action flick and every short skirt had us on the edge of societal meltdown. The key phrase was "sex sells" as a somber admission that anybody who believed in decency was fighting an uphill battle. Parents would smack their kids for saying "sucks" at the dinner table, and if we got caught with porn, it was a serious problem. Then somebody went and invented a decent web browser, and the fount of porn began to flow. Any restrictions on violence were thrown out the window. Marijuana became a laughing matter again. 15 years later, the best selling movies are CG Pixar flicks and stupid chick flicks or Harry Potter-LOTR fantasy. Societal decay my aching ass!

  • BakedPenguin||

    so long as we're talking about useless government agencies, how about getting rid of the DEA? Their beudget's a lot bigger and they do far more damage.

  • ||

    Amen! As Napolitano said, it's time for America to drop it's Victorian façade.

  • ||

    I think we could allocate spectrum without the FCC. The FCC is second only to the USDA in total useless fuckitude. Probably a hundred times easier to get rid of though. Which would mean it's like 10^33 to 1 against vs. 10^35 to 1.

  • stuartl||

    I think we could allocate spectrum without the FCC.
    I'm curious how you think this would work - in fact it is one reason why I read the article. Wouldn't there be the classic commons problem?

  • ||

    There would of course need to be SOMEBODY who would keep track of and clear titles in spectrum channel-space. But I think Warren's point may be that this wouldn't necessarily have to be a government entity or even a single entity. Government might become involved in maintaining "deed records," as they do now for property tax purposes, and in adjudicating cases of interference/trespass or competing claims to the space, but not under the auspices of some special, central communication agency.

    A claim to a section of spectrum could be based either on original "discovery"/occupation/use, or on transfer of title between a previous owner and a new one. This kind of thing would seem to be well-handled by a traditional "real-estate" market mechanism.

  • ||

    Damn it, there was an economist who developed an entire theory about how the market can allocate bandwidth, as long as the initial rights are handed out fairly. What was his name?!?! Gaahhhh!

  • ||

    Ronald Coase! I got the name from Don Boudreaux himself, at cafe Hayek.

  • stuartl||

    ...how the market can allocate bandwidth, as long as the initial rights are handed out fairly.

    Yes, but as Coase points out, the initial rights are the hard part.

    A claim to a section of spectrum could be based either on original "discovery"/occupation/use...

    If I put a 1 watt transmitter and a freq generator on my roof, and step through a range of frequencies delivering my latest twitters, can I claim ownership?

  • ||

    I'm not an expert on radio bandwidth, but I am pretty sure that there is a system that we could put in place that would allow different parties to coordinate with eachother to define where one's rights end and the others' begin.

  • Anomalous||

    As the late Grandpa Al Lewis said:

    FUCK the FCC! Fuck 'em, fuck 'em!

  • ||

    There really is nothing to prevent folding some of the useful functions of the FCC into a department level Dept of Commerce operation. A back office operation of a dozen or so employees could focus on interstate effects of frequency and band applications for broadcast communications. Everything else they do is irrelevant.

  • VikingMoose||

    the fellahs at the freakin FCC

    it's gonna be around as long as people get hysterical about language and bewbs on tv...

  • Punk||

    The FCC exists for the children. You wouldn't want your kiddies to see boobies, do you???

    Now, if they happen to be in Portland...

  • ||

    truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led."
    "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one."
    "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it."
    "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise."pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social inequalities ...obama feelings against Americanism are feelings of hatred and deep repugnance ... everything about the behaviour of American society reveals that it's half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit… The media's justification is apparently “because it's out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

  • VikingMoose||

    tl/dr

  • ||

  • ||

    The "debunkers"(like Moynihan) of conspiracies often claim that the government could not be invloved in whatever evil deed because the government is incompetent or the secrets would get out due to all the people that would need to be involved. yet when secrets like this come out? why do people at Reason ignore it?

  • ||

    The judgment here should be a no-brainer, and one upon which liberals, libertarians and conservatives can all agree: When it comes to speech, Washington should have no power to decide what is, or is not, permissible.

    LOL!

    Good one!

  • ||

    $335 million a year? i agree entirely with the article that the FCC has no business existing in the first place, but that amounts to such a miniscule amount of total government waste it's almost not worth thinking about money-wise.

  • Brooke||

    Kimchi Eater, don't think for a second that the bulk of the FCC's cost on society has anything to do with its operating budget.

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  • sd||

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