Is It Too Much to Ask That the FCC Identify Actual Instances of Harm Before Issuing New Regulations?


Earlier this week, Politico reported that Republicans in both the House and the Senate are working on legislation intended to reform the regulatory process at the Federal Communications Commission (FCC):

Republican lawmakers on Wednesday renewed a push to curb the Federal Communications Commission's regulatory powers and make the agency's dealings more transparent, the latest attempt by the GOP to rein in what it calls overbearing regulation of business by the Obama administration.

Rep. Greg Walden (R-Ore.), chairman of the House Energy and Commerce Subcommittee on Communications and Technology, and Sen. Dean Heller (R-Nev.) cast their legislation as a stand against job-stifling regulations and opaque processes that make it harder for telecom companies to prosper.

…The measure would require the FCC to publish rules before voting on them — a move that would give industry more time to analyze and push back against proposed regulations. It also would force the commission to identify a specific market failure or consumer harm before enacting a new rule. And the FCC would have to let parties affected by certain commission proceedings know when they can expect a decision.

Later in the article, Rep. Walden says he was interested in these reforms long before the FCC passed last year's net neutrality order. But the net neutrality rules provide a good illustration of the sort of behavior that rules like these would prohibit. Despite a lack of popular outcry for net neutrality regulations, and despite almost no examples of actual harm being caused by net neutrality violations—the agency itself has admitted that the rules are "prophylactic"—the FCC went ahead and passed a bevy of new guidelines about how ISPs can manage traffic over their networks. And they did it without even releasing the final rules to the public first. There was no real case for regulation, but they did it anyway, and they did it while keeping the actual rules secret, holding a vote just a few days before Christmas. 

The FCC wouldn't comment directly on the proposed legislation, but a spokesman did note that since Chairman Julius Genachowski took over, the agency has increased the number of rule-making notices that actually contain the text of the rules from 38 percent to 85 percent. "We've made impressive strides," the spokesperson told Politico. If increasing the number of rules that are actually available to read in advance is impressive and presumably positive, then there shouldn't be any objection to legislation that requires 100 percent of the rules to be clearly posted in advance.

Pennsylvania Democratic Rep. Mike Doyle, however, warned that "the proposed legislation would cause needless delays to the FCC's rulemaking process, making it more difficult for the agency to respond effectively to the fast-changing telecommunications marketplace." Doyle's worrying merely highlights the problem the legislation is intended to solve: The FCC and many of its congressional allies are more interested in aggressively regulating the telecom industry than in justifying or even clearly explaining the agency's rules and decisions. 

Read "Internet Cop," my story on the Obama administration's quixotic quest for net neutrality legislation, here

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  1. Almost makes the case against having various these various “rulemaking” agencies in the first place…

  2. This is what happens when idiots write rules for the sake of writing rules.

    1. Re: Sarcasmic,

      This is what happens when idiots write rules for the sake of writing rules.

      But don’t you see? Without those idiots writing those rules, the country would quickly fall into chaos and anarchy! CHAOS AND ANARCHY, I tell you!

      Tony the pederast told me so…

      1. It is sad that so many people simply cannot understand that rules can exist without threat of violence.

        Voluntary cooperation. How does it work?

        1. You mean like…voluntary agreements between independent autonomous actors, in which they establish their own mutual rights, obligations and expectations among themselves? Like…contracts???

  3. Despite a lack of popular outcry for net neutrality regulations, […] the FCC went ahead and passed a bevy of new guidelines about how ISPs can manage traffic over their networks.

    A planet where departments make their own rules?

  4. But wouldn’t this legislation hamper the FCC’s mission of controlling the internet?

    1. If it wasn’t for the kindness of the FCC, your ISP would be charging you $100,000 per month to access the Internet. Honest.

    2. They have to destroy the internet to save it. The FCC must be given the master switch to effectively regulate your packets.

  5. “Actual harm”? Are you kidding?

    Anything which may be conceived is INEVITABLE! We cannot wait around with our hands in our pockets until some child sees something scary like a nipple; he could be scarred for life!

    1. There is much truth in this. The argument will always be that regulation must be implemented before actual harm takes place. That’s the role of the enlightened regulator: he sees, knows –and more importantly — foresees all.

      The enlightened regulator acts proactively. He sees the snare in the road and safely, carefully and lovingly steers his people around the snare, averting disaster, not reacting to it.

      1. It’s one thing when the potential harm is obvious, reasonably likely to occur, and so on. It’s another thing when they ban something that could hurt someone if exposed to it from now until the heat death of the universe.

        1. It’s one thing when the potential harm is obvious, reasonably likely to occur, and so on.

          But that’s just it, isn’t it? Consider, for a moment, the personality type, the one whose genetic code is wired to even want to work for one of these regulatory agencies. We’ll call him “Top Down Guy”.

          Your vague, open-ended and implausible scenario can easily be a regulator’s obvious harm which is likely to occur.

          It’s all about sales.

  6. “”Is It Too Much to Ask That the FCC Identify Actual Instances of Harm Before Issuing New Regulations?””

    Of course.

    1. If we have to wait for actual instance of harm before we act, we will be sending the wrong message to young people!

    2. How are they ever going to control the internet if they don’t start laying the groundwork for censorship powers now?

  7. It’s almost like no one here has heard of the Precautionary Principle! Why, they must act to prevent nebulous, vaguely-identified possible harm! IT’S FOR THE CHILDREN!

    Why do you all hate children?


    1. But wouldn’t the application of the Precautionary Principle to regulations mean that most regulations would be banned?

      1. The Precautionary Principle precludes us from applying the Precautionary Principle to regulations. So there!

    2. Won’t someone please think of the children?!?

  8. “Is It Too Much to Ask…”

    Yes. It is the government, don’t ask just tell.

  9. Absence of rules is harm in itself.
    If something exists, then there must be rules.
    How can something exist without rules?
    How will people know how to do something without reams of regulations telling them what to do?
    How will wrongdoers be punished if there are no rules to break?
    How will searches and audits be justified if there are no rules?
    How can the system be gamed if there are no rules?
    How will the politically connected be able to squash their competition and bar new entry into the market if there is no regulatory machine for them to capture?
    How will regulatory agencies justify their existence without churning out piles of unnecessary rules and regulations?
    What will useless lawyers and poli-sci grads do for work without regulatory agencies to employ them?

  10. Why do you all hate children?

    Do you really have to ask?

    1. In my case, it’s because I actually know some (and have some hazy memories of having been one).

  11. …The measure would require the FCC to publish rules before voting on them

    What!? Next thing they’ll be expecting people to *read* legislation. This is proposterous! The only requirements of making new laws are a) first a round of Moral Panic, and expressions of grave concern and posturing for your constituents, b) attacking the other party as being ‘weak’ on whatever it is, c) determining from lobbyists what precise policy will garner the most fund-raising $$, d) rushing a vote through before the public actually asks any questions, then e) blaming the other party for any unforseen consequences of the legislation.

    I don’t see any mention of ‘publishing’ or ‘reading’ shit.

    1. You forgot about giving it a cute acronym or naming it after a dead child.

  12. I have a thought experiment: What would happen if we abolished the FCC, its enabling act, and all of its regulations? More telemarketing calls, I suppose, but what else?

    1. First thing that pops into my mind is that there would probably be greater variety and quality of programming on the radio.

    2. The people at the Parents Television Council would have no one to complain to.

      1. Most telephone regulation happens at the state level, I believe, so that’s not an issue (leaving aside the necessity of regulation telephones at all for the moment).

    3. Cancer rates would skyrocket as broadcasters started using the “secret” wavelengths to send out their signals.

      1. DERP! Sparky you fool! They ALREADY have been using the secret wavelengths to send out the mind-control beams… which in unison with CHEMTRAILS, the Bilderberg group, and the reverse vampires…

    4. HULU would be snuffed out! Or so they told me on Slashdot.

    5. Pro Libertate|11.4.11 @ 12:13PM|#

      I have a thought experiment: What would happen if we abolished the FCC…?

      Life would cease as we know it. We would descend into a Blade Runner dystopia of unregulated and intrusive advertising, out-of-control cyber-crime, total anarchy across the broadcast spectrum, with no reliable system for allocation, and ubiquitous pornography broadcast all hours of the day, peaking whenever children are most likely to be exposed.

      Without government agencies, society would rapidly destroy itself. Didn’t you learn this in Civics 101?

      1. Dear Lord, you’re right! I recant, I recant! Please!

        1. Without regulation, something like Twitter and Facebook would be allowed to flourish unchecked.

          1. Hmmm, that’s a hard one to argue.

    6. Electronic equipment could produce harmful interference with broadcast signals, 900 and 976 numbers wouldn’t have to tell you how much the call costs per minute, and of course TV and radio stations could interfere with each other’s broadcasts to their hearts’ content.

      1. SEE!! END OF WORLD!!

        because people would *still* call “900” numbers…. the fools! And technology developers would simply *ignore* issues of bandwidth… they’d just go willy-nilly across the spectrum… it would of course be in their interests to constantly interfere with each other… just like how the internet doesn’t work at all…. unregulated things *never* figure out their own problems! ANARCHY!!

        Everyone knows that the current regulatory scheme has produced the best of all possible worlds.

  13. What is with the opposition to FCC rules governing a free (as in freedom) Internet, when telecom companies enjoy monopolies over airwaves and cable-laying granted them by government?

    There are lots of “in an ideal world” proposals like privatizing police and roads that I don’t see get as much enthusiasm as letting telecom companies run rampant with their monopolies and oligopolies over network infrastructure. Why is there so much opposition to these rules for computer networks and none for the same rules governing telephone networks?

    To be clear, I’m talking about rules that essentially turn networks into common carriers: providers may not restrict what devices can connect and providers may not discriminate among lawful content. Jokes about these policies being “for the children” do not apply.

    1. you clearly cannot think past step 1

      1. Yeah, this is about what I expected from this crowd – an insult as answer to a genuine question.

  14. Unnecessary regulations is the means by which politicians shake down private industry. More regulations leads to more lobbyists, which leads to more campaign cash.

  15. What would happen if we abolished the FCC, its enabling act, and all of its regulations?

    Civilization would collapse.

    Next question?

    1. Well, it’s gonna collapse anyway. May as well hasten the fall.

  16. Does the FCC have some kind of exemption from the APA? One of the basic rules of administrative rule making it notice and comment before issuing a final rule. How do they avoid it?

    1. Based on what the Third Circuit had to say this week in the CBS Janet-Jackson-Wardrobe-Malfunction Case, the FCC appears not to let little details like the APA or due process get in its way unless the courts force it to.

      1. How do they avoid it?

        Because fuck you, that’s how.

        1. “Because fuck you, that’s how.”

          Well put.

    2. That’s what I was wondering when I read this too. Maybe it’s something to do with their being a commission — like the commission structure and commissioners take care of all the due process that would otherwise require the provisions of the APA.

  17. A really good litmus test for determining if someone cannot think past step 1 is to ask them if they support net neutrality.

    1. I support gross neutrality.

    2. Any discussion on Net Neutrality deserves a repost of one of the Great H&R posts of all time on the subject by Wind Rider, a commenter which doesn’t post here nearly often enough.…..nt_2056448

      1. Thank you for linking that comment. The author was unnecessarily and counter-productively arrogant and rude, like califronian, but the point he was trying to make was good, unlike califronian.

        1. The author was unnecessarily and counter-productively arrogant and rude

          I haven’t been around here anywhere near as long as you have I’m sure but how could you not see that coming?

          1. Heh, today was my first comment, and I rarely read them. I think I’ll go back to that system. 🙂

        2. John, by H&R standards, he was a paragon of manners.

  18. I do enjoy the manner in which you have presented this specific challenge and it does provide me personally a lot of fodder for thought. Nevertheless, through everything that I have experienced, I basically hope when the responses pile on that men and women keep on point and not start upon a soap box involving the news of the day. Still, thank you for this exceptional piece and whilst I do not really agree with this in totality, I respect the

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