Error: I'm afraid this is the first I've heard of a "comments" flavoured Blosxom. Try dropping the "/+comments" bit from the end of the URL.

Mon, 31 Mar 2008

Abolish the FCC; Save the FCC; Which?

Since the turn of the century, there have been an increasing number of rants from pundits about abolishing the Federal Communications Commission, acronymically called the FCC, or sometimes "Uncle Charley" by the good buddies and old men on CB and ham radio. There's even a book by Peter Huber, a polemic that argues the extreme that FCC should never have been created, that it impedes innovation, protects monopolies, blocks easy access to the airwaves, censors free speech, dilutes copyright, lessens privacy, weakens common carriers, poisons the groundwater, corrupts young children, and contributes to global warming.

Maybe these pundits are just the paid mouthpiece for disgruntled recipients of record FCC fines for "indecency" and fat oxes in the communications industry gored by spectrum allocation and technical rules. Maybe they all have been calling for the restructuring, or outright dismantling, of this agency based on personal motives. Or maybe there really is a good reason the FCC should be dismantled or downsized. Since I'm basically an outsider, yet have some experience both with communications technology and with FCC regulation, I think I can make some useful observations regarding the function of this agency and analyze them in the context of the criticism the agency is receiving. I'll even venture an opinion about what, I think, "should" be done.

Specifically what I'm going to say is the following. Despite its apparent role as regulator of technical standards, in my view the mission of the FCC is not technical arbitration, but rather social and political. There was a time when technical arbitration may have been marginally necessary, but that time has long passed. Furthermore, I feel that the social and political roles played by the FCC, once very important, are no longer relevant. Finally, my opinion is that the FCC should be restructured as a technical arbitrator at the lowest level, and should relinquish any role in regulating higher level aspects of communications.

To begin my detailed argument, let's consider how the FCC came to be. It's often the case when thinking about abolishing some regulation or regulatory agency that we see only the current situation and neglect to observe why the regulation or agency came into existence in the first place. There usually was a very good, consensual reason for introducing the regulation and it behooves us to check to see if it's still a good reason. Personally, I believe that the real reason the FCC was created isn't the reason usually cited, and it's this disconnect that explains some of the controversy today.

With respect to the origins of the FCC, in 1927, radio broadcasting had become such an important commercial and social force that the US government first created something called the Federal Radio Commission to regulate radio. The FRC had very limited powers. It couldn't, for example, refuse access to anyone. By 1934, however, radios had become a critical infrastructure. Radio was the primary media reaching widely across depression era America. For this reason, US government regulation of radio was expanded further by creating the Federal Communications Commission through the Communications Act of 1934. This new commission had practically unlimited power to grant and revoke licenses to the airwaves. The new FCC now also regulated telephones, and eventually would expand to control nearly all non-governmental forms of electronic communications, either on wire or over the air.

Many criticisms of the role of the FCC make analogies between the development of radio and the development of the Internet. The early days of radio were similar to the early days of the Internet in the sense that clashing commercial interests struggled to exploit the new technology. But The Internet of 1994, and radio of 1934, were fundamentally different in a critical sense relevant to government action. Radio in 1934 was a cultural aorta reaching people in a new, unique, and essentially irreplaceable way. Whereas, in 1994, people already had a plethora of communications media at their fingertips; the Internet in 1994 was just another jolt in the Future Shock of media overload. Depression era people, in contrast, had no alternative to radio for the life's blood of real-time news, entertainment, and bonding to the mass culture of the blossoming superpower.

Numerous arguments for and against regulating the new radio technology were discussed in the 1920s. Some authors claim that the original justification for existence of the FCC was Herbert Hoover's "love of order" inspired effort to rein in an unruly marketplace. But it seems to me that this isn't enough reason as it presupposes that "unruliness" is a bad thing in itself. Many other markets revel in their "unruliness". There had to have been a more fundamental reason that radio needed a federal czar.

In my opinion, consensus was reached for regulating radio because radio had become so central to the US culture. People deeply needed radio to such an extent that they felt it was practically their guaranteed constitutional right to have affordable, reliable radio service. When I talk to older friends and family that lived through the 1930s, they report that people in general used radio to make them happy in a dark time. They wanted the next episode of The Lone Ranger or The Shadow. I expect that companies making unprecedented millions selling soap via radio advertisements wanted radio to work too, but the commercial interests, driven by consumer demand rather than some intrinsic stake in the technology, were an effect rather than the primary cause. People simply liked radio and they wanted their government to ensure they had available at reasonable costs a rapid, efficient, nationwide and worldwide communication service. People didn't want to wait for the market and the lower courts to settle things.

When there were only a handful of stations, conflicts were rare, but as more and more stations appeared, the limited technology of the time inevitably let users down. Stations interfered with each other in various ways. These technical conflicts were far bigger than local trespassing disputes and could not be resolved by the slow, messy process of litigation – certainly not in time for the next episode of Amos and Andy. Sometimes these conflicts were nationwide or even worldwide in scope. Ships at sea, that had begun relying on radio about 1910 were distressed to see their life or death SOS calls interfered with.

When we talk about "interference" as something like "trespassing", there's a very important technical point that needs to be understood. People ignorant of the subtle aspects of electromagnetic communications are likely to treat the mathematical concept of "spectrum" as something fundamentally like real property. This ignorance may be a result of lack of fundamental knowledge, or it may be a self imposed blindness toward the true facts. For whatever reason, it is popular to make a naive analogy between spectrum and property. I, myself, have made this misleading analogy in other writings, particularly with respect to the 700 MHz auction. In this essay, I hope to steer closer to the truth.

The fact is, the concept of spectrum is merely an artifact of a certain mathematical equation that gained some practical significance in the mid 20th century because of the way early radios were designed to select stations based on their broadcast frequency. There is no fundamental selective exclusivity about spectrum – at least not in the same deeply fundamental way that real property is exclusive. Two competing real estate developers cannot simultaneously build different physical buildings on the same lot of land, but the same lot of spectrum can support many simultaneous and non-interfering electromagnetic tenants – even competing tenants.

The very first radios had no method to discriminate between multiple transmitting stations. If two transmitters operated at the same time, receivers heard both of them, an obvious problem. As the technology progressed, a structure called a "tuned circuit" was added that allowed the operator of a receiver to select which transmitter they wanted to hear based on the length of the radio wave. Progress in early radio could be measured directly by progress in tuned circuits. By the 1940s, tuned circuits were very sophisticated indeed, but they still required stations to cooperate by locating on different wavelengths in order to be selected individually. For this reason, the new Federal Communication Commission chose to regulate access to the airwaves based on allocating blocks of wavelength, equivalent to selling frequency real estate.

But it wasn't long before other methods for discriminating between stations were invented. The war took radio out of the living room and put in onto the battlefield. The enemy could not be expected to cooperate with frequency allocation rules. Consequently, both the allies and the Axis powers experimented with what are called "Spread Spectrum" systems that do not require cooperative frequency allocation by government bureaucracies in order to work. Such systems were known outside the military as well. Hedy Lamarr, the Hollywood movie actress, and George Antheil, an avant garde composer received a patent in 1942 for "frequency hopping", an early spread spectrum technique.

Admittedly it was many years before electronics technology allowed spread spectrum to be commercially competitive with tuned circuits, but FCC regulation lagged these developments by decades. Even today, when spread spectrum systems are routinely built on microchips, these systems are second class citizens of the airwaves, needing to meet standards that are almost entirely for the benefit of tuned systems. Each time modifications were made in FCC rules to allow spred spectrum, there was an instant outburst of commercial products taking advantage of the new freedom. Look at how much better the spread spectrum cordless phones were than their tuned circuit competitors. Or consider how quickly CDMA cell phones, once permitted, replaced "tuned" cell phones. (I might add: obsoleting the silly and Sovietesque FCC ban on 900 MHz tuned receivers that is still in the FCC regulations for no defensible reason.)

This ingrained concept of spectrum as fundamental to radio is hard to shake. Radio stations still say things like "don't touch that dial" or "tune in" even though most modern receivers are frequency synthesized from digital controls, not knobs or dials, and jump discretely to stations without any sort of "tuning". Worse yet, most radios perpetuate the reliance on spectrum as a concept because they use the FCC mandated AM and FM modulation techniques that require spectral allocation in order to work properly. Worst of all, the idea that spectrum is something that can be bought and sold like land is entrenched almost beyond reform when the FCC sets up auctions for spectrum, grants exclusive spectrum based licenses, and takes people's money in exchange for this fiat.

Lawrence Lessig wrote in his book Code that when there is a problematic human conflict in the use of technology, there are two fundamental ways to fix the problem. One way is to alter or improve the technology itself so that the conflict can not occur. The other way is to pass a law or social taboo regulating the technology in such a way that people are discouraged (fined, jailed, shunned, etc...) should they use that technology in a "bad" way that allows the conflict to occur. A simple example of these alternatives is the divided highway (technical solution) compared to a double yellow line painted on a two way road (regulatory solution). Lessig calls these "left coast code" versus "right coast code" solutions, a pun based on the geographic locations of Silicon Valley and Washington DC.

In the 1920s, when Commerce Secretary Herbert Hoover, an engineer by training, was worried about the "unruliness" of the unregulated new industry of broadcasting, apparently he didn't see a reasonable technical solution for the conflicts arising between the hundreds of radio stations had been launched. Legislation seemed to be the only solution he and his supporters thought viable, and it was their leadership that resulted in the Communications Act of 1934. But despite his training, Hoover was a politician by trade. I wonder how much time he actually spent thinking about possible technical solutions in comparison to how much time he thought about broadcast radio networks as a powerful a unifying cultural conduit and political force in the nation?

This same era had other landmarks of the same ilk. In 1922, when the US Supreme Court ruled in favor of Major League Baseball in the case Federal Baseball Club of Baltimore, Inc. v. National Baseball Clubs, the court granted a unique exemption to anti-trust law that is not shared by any other sport, or business for that matter. Baseball is too much of a unifying cultural icon in the USA for conflict to be allowed. People like their baseball. Baseball is a constitutional right. People want their government to ensure they have available, at reasonable costs, a nationwide baseball league. I'm surprised that they didn't create a Federal Baseball Commission in 1927 to go with the FRC.

My point is that the same era in US history that granted the anti-trust exemption to the baseball monopoly, created a FCC that favored radio monopolies for very much the same cultural reason. As yet another example, many distortions of the copyright clause in the constitution allow the unlimited protection of Mickey Mouse ©1928. Babe Ruth, Mickey Mouse, and The Lone Ranger were part of the emerging US national identity. As much as we pay lip service to freedom and open markets in general, when it comes to our entertainment, we become very conservative and don't want to see certain sacred cows messed with.

If my claim is true, although technical arbitration may have been part of the rhetorical justification for the FCC in 1934, it wasn't the fundamental justification. This view implies that even if technical advances mean FCC arbitration of the airwaves is no longer needed, we still need to get past the fundamental cultural justification of the FCC if we want to successfully argue for its removal.

In support of my point, today's FCC most definitely still sees itself primarily as a facilitator of universal communications services, rather than a technical arbitrator.

It is the mission of the Federal Communications Commission to ensure that the American people have available at reasonable costs and without discrimination rapid, efficient, nationwide and worldwide communication services whether by radio, television, wire, wireless, satellite, or cable. – FCC Mission Statement

Like most mission statements, the FCC mission statement isn't entirely specific, but the focus on facilitating communications (rather than promoting free and open competitive development in the art of communications itself) is clear. Interestingly, the beginning of the FCC strategic plan adds a second focus omitted from the mission that the plan calls "equally important": promoting health, safety, and homeland security. However, these defense and safety missions of the FCC are clearly listed in the Communications Act of 1934 (amended in 1996).

The FCC's plan doesn't say anything directly about a lot of the things that the FCC regularly does to piss people off, like fining broadcasters for unacceptable broadcast content. Mandate for those sorts of activities are built into phrases like "orderly" and "enforcing the rules". Moreover, if one accepts my conjecture that the creation of the FCC, and thus its real mission, was to conserve and promote mainstream US culture, many of these controversial FCC actions make a lot more sense, especially if we force ourselves to remember what the 20th century was like. (Has it been that long?)

It seems that it has. For many people today, it's almost impossible to imagine today what a pervasive and unifying force television and radio broadcasting were in the USA during the 20th century. The key word is broadcasting, the scattering of cultural seeds across the fertile minds of the population. Never before, and possibly never again, will there be a mechanism to distribute the same messages to so many people, so reliably, and so repeatably.

I was born too late for the Golden Age of Radio, but I did catch the Golden Age of Television in re-runs. The US culture of my childhood was immersed in television. My family had a TV set in practically every room. One particular example was our Sunday night tradition of watching the Ed Sullivan show. On Monday, it was rare to encounter a person that hadn't seen the Sullivan show, or Bonanza for that matter.

It would be unthinkable to allow somebody to use such a pervasive media to broadcast obscenity, blasphemy, overtly partisan editorials, communist propaganda, or any other content injurious to children and others with sensitive dispositions. These were the "public airwaves", tantamount to the public thoroughfares in Our Town, USA.

TV sets and radios are influential in many homes today too, and shows like American Idol and conservative talk radio still do influence our culture. But as influential as these can be, there are simply too many competing media sources for any one source to achieve pervasive and sustained cultural penetration. Rush Limbaugh could only dream of his words being heard – and trusted – by as many people who listened to Edward R. Murrow in the 1940s, or to Walter Cronkite in the 1960s.

Within the first decade of its existence, in recognition of the power dominant broadcasters had over the ear of US citizens, the FCC began to enact a variety of bans on obscenity, as well as "Fairness Doctrines", in an attempt to ensure that the content distributed by broadcast networks was acceptable for all political and moral dispositions. The FCC took the view (in the 1940s at least) that broadcasters were "public trustees" and even had an obligation to seek out contrasting views in order to keep their reporting balanced – at least balanced toward what the majority saw as balanced. During the deregulation fad of the 1980s, many of these doctrines were abolished – most obviously resulting in a slew of ultra-popular conservative talk radio shows that entertain their many listeners with amusingly ironic accusations bias in the mass media.

Most recently, George W. Bush upheld the repeal of the Fairness Doctrine, yet it was his nomination of FCC Chairman Kevin J. Martin that led the commission to step up its regulation of indecency in the media. Today's FCC enforcement bureau is actively levying record fines for indecency, enforcing 20th century cultural norms on the dying wireless broadcast industry.

It may seem absurd for the FCC to devote such energy to punish minor profanity and nudity in an age where practically every teenager is just a click away from hardcore porn. Don't they realize that broadcast media is no longer dominant? I'm sure they do. Yet, the rules are the rules. It was in the context of the dominance of broadcast media that the FCC developed the rules along with the supreme power to regulate the content of broadcast communications that it enjoys today. This obsolete context explains why FCC levies absurd and expensive indecency fines for racy language by Howard Stern, Janet Jackson wardrobe malfunctions ($550000), and CBS's "Without a Trace" suggestive episodes ($3.5M), among others.

Surely in today's context such fines are arguably "arbitrary and capricious, inconsistent with precedent, and patently unconstitutional." Recently, Fox TV refused to pay a $91,000 fine for a show featuring strippers and whipped cream. Maybe in 1965, when Taste of Honey played on the radio incessantly, the potential to abuse the pervasive cultural influence of broadcast media had to be counterbalanced by a watchdog like the FCC. But today? Wireless TV has no special place in our culture. The analog version of wireless TV will vanish in the US next year. Why is the FCC fining Fox for some healthy young girls covered with whipped cream? I've seen far worse on You Tube looking over my teenage daughter's shoulder.

There's also a technical irrationality apparent here. Is there really a difference between Fox's wireless TV channels and Fox's cable TV channels. It really seems absurd to base obscenity fines on the delivery mechanism. Maybe some will argue that the difference consists in how the media is paid for. Wireless TV is paid for by advertising, while cable TV is paid for by subscription. But that's hardly coherent either. Lots of things are paid for by advertising. Google is paid for by advertising. Should the FCC fine Google for racy search results? Of course not.

It could be about choice. Somehow, broadcast media seems imposed on us against our will. With cable or Internet, we opted in; with wireless broadcast, it seems more like we didn't. But is that sort of thinking still relevant? Maybe in 1965 it was difficult to opt out of an objectionable Ed Sullivan bit – you had to walk across the room and clunk over to one of the other two channels (unless you had Zenith Space Command). But today, TV remotes are ubiquitous and typically surf easily a hundred channels. TIVO systems are also growing common. TIVO transforms broadcast media into a view-on-demand system.

My point, therefore, is that a truly pervasive and unavoidable cultural broadcast no longer exists. Quite the contrary. People these days tend to gravitate to very specific media tuned to their tastes, polarizing our culture. Evangelicals watch preaching 24x7; trekkies and their ilk watch SF soap operas 24x7; perverts watch porn 24x7; evangelical, pervert, trekkies watch all three on a split screen. And so on. Everybody gets what they want. If they dislike something, they instantly surf over to a different site where they either get what they like, or even enjoy a discussion of righteous indignation about the stuff they don't like.

Maybe things were better when we all watched Ed Sullivan, but we can't turn the clock back.

Thus, as a cultural policeman, the FCC's role has been marginalized. The information age has made this aspect of their regulation near pointless. We can opt out of media we don't like (or opt out for our children with supervision or filtering) quite easily enough without the FCC, thank you.

In addition, as a wavelength title guarantee company, the FCC's role is downright harmful, impeding the progress of radio technology. Spectrum sales favor deep pocketed incumbants who have little incentive to allow disruptive technologies like spread spectrum to gain a foothold in the market.

And don't get me started on the Broadcast Flag.

In my opinion, the FCC should either change its mission, or go away. It should discontinue its efforts to protect the dying broadcast media and other business models based on tuned circuit radios. Rather, it should turn toward the future and chart an orderly course for all obsolete communication regulation to be repealed.