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Op-Ed: Genachowski's wasted tenure as FCC chairman

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Photo - WASHINGTON, DC - MARCH 12: Federal Communications Commission Chairman Julius Genachowski testifies before the Senate Committee on Commerce, Science and Transportation during an FCC oversight hearing on March 12, 2013 in Washington, DC. FCC members warned that a planned 2014 incentive auction of broadcast TV spectrum for mobile broadband use could encounter setbacks. (Photo by T.J. Kirkpatrick/Getty Images)
WASHINGTON, DC - MARCH 12: Federal Communications Commission Chairman Julius Genachowski testifies before the Senate Committee on Commerce, Science and Transportation during an FCC oversight hearing on March 12, 2013 in Washington, DC. FCC members warned that a planned 2014 incentive auction of broadcast TV spectrum for mobile broadband use could encounter setbacks. (Photo by T.J. Kirkpatrick/Getty Images)
Opinion,Op-Eds

Federal Communications Commission Chairman Julius Genachowski entered office promising post-partisanship, much like President Obama, his law school friend. Genachowski offered plenty of reasons for hope, but delivered little in the way of positive change. Instead of working "to ensure every American has access to broadband capability," as Congress had commanded, Genachowski scattered his attention across a wide range of issues that did little to advance broadband adoption. His lasting accomplishment has been to polarize communications policy more sharply than ever.

Genachowski wasted two years and much of the agency's resources hunting down the great white whale of Net Neutrality. Without evidence of a real problem, he insisted on imposing "prophylactic" regulations that would limit innovation in broadband technologies and business models. That slowed the massive private capital investment needed to achieve faster speeds and universal adoption -- the declared goals of the visionary National Broadband Plan that his agency published but then promptly forgot.

For all the rancor it generated, Genachowski's clumsy attempt to expand the FCC's authority well beyond what Congress intended will probably come to naught anyway. If the D.C. Circuit Court of Appeals strikes down the Net Neutrality rules (as is widely expected) the Commission will be back at square one. Legal authority over allegedly anti-competitive broadband practices will remain where it has all along: the Federal Trade Commission and the Department of Justice.

President Obama's next FCC chairman could try to re-regulate broadband as a common carrier under Title II, the likely-illegal "nuclear option" that Genachowski toyed with in 2010. But such a "reclassification" could well backfire if it prompts Congress to rein in the FCC by overhauling the Communications Act. (Three years ago, the idea of reclassification provoked bipartisan condemnation from 171 House Republicans, 37 Senate Republicans and 74 House Democrats.) Congress could simply make the FCC work more like the FTC, intervening only when the FCC can show real consumer harm and craft remedies that don't make consumers worse off. Or Congress might once and for all clarify that the FTC will be responsible for governing broadband, just like nearly every other industry. Whatever happens, it won't be pretty for the FCC.

It didn't have to be this way. With the support of Republican Commissioner Robert McDowell (also now retiring), Genachowski could have made great progress on a range of issues where broad consensus exists. The full Commission had some successes, such as reforming the bloated Universal Service Fund. But Genachowski spiked his greatest opportunities by repeatedly tilting at ideological windmills.

The greatest missed opportunity was the failure to provide more radio spectrum for mobile users, whose demand skyrocketed while Genachowski fiddled. The National Broadband Plan wisely urged the agency to feed that market miracle with more bandwidth, but all the agency delivered was a minor spectrum auction that raised $20 million -- a laughable sum after the 2008 auction raised $19 billion, or nearly a thousand times more.

The Commission also dithered over how to free up spectrum on its own. Genachowski alienated lawmakers such that they feared he would use new auction authority to regulate by stealth. Last year, when Congress finally authorized auctions of spectrum repurchased from over-the-air TV broadcasters, lawmakers specifically instructed the FCC not to limit participation by eligible bidders. Yet that's precisely what Genachowski recently proposed.

In short, the FCC has become a rogue regulator, "freed ... from its Congressional tether", as the D.C. Circuit Court put it in a 2010 decision. The next FCC chairman should be someone who can ground the FCC's work not only in law but also in rigorous cost-benefit analysis, as well as appropriate humility about technological change. For the agency to deliver on the grand promises of its National Broadband Plan, it will need to clear away 20th century regulatory dead-wood, not make grandiose and ideologically charged power grabs.

Berin Szoka is president of TechFreedom, a free market technology policy think tank.

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