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Robbie's Round-Up for the Week of November 28 - December 2, 2016

The best chance for getting the right kind and right amount of regulation is to have laws that require evidenced-based regulations and regulatory leadership that values sound regulation over politics.

On November 21, 2016, President-elect Doonald Trump named Mark Jamison and Jeffrey Eisenach to his “agency landing team” for the Federal Communications Commission. Jamison is a Visiting Fellow with the American Enterprise Institute (AEI). He is also the Gunter Professor of the Public Utility Research Center (PURC) at the University of Florida and serves as its director of telecommunications studies. [Eisenach is a Visiting Scholar at AEI and Director of its Center for Internet, Communications, and Technology Policy.]

Since, as a candidate, Donald Trump did not offer a telecommunications agenda, many are trying to read the tea leaves to understand how these appointments will impact how the FCC will operate over the next four years. As a professor and visiting fellow, Jamison is a prolific writer. We've been reading through his works looking for hints of what Trump Administration priorities may be.

Career

Jamison began his career in 1987 as a researcher and analyst at the Iowa Utilities Board. He co-led an initiative that brought together leading state telecommunications regulators and industry executives, which laid the foundation for policies adopted in the Telecommunications Act of 1996. He also directed development of National Association of Regulatory Utilities Commissioners' (NARUC) telecommunications policy positions as the chairman of the NARUC staff subcommittee on communications.

From the Iowa Utilities Board, Jamison moved to Sprint where he was a manager of regulatory policy. There he developed and co-led a team that wrote Sprint’s positions concerning the Telecommunications Act of 1996. He was responsible for developing policies consistent with Sprint’s business and financial objectives, and designed strategies for policy advocacy and implementation.

After his stint lobbying for Sprint, Jamison became the Director of Telecommunications Studies at the University of Florida. He provides international training and research on business and government policy, focusing primarily on utilities and network industries. He co-directs the PURC/World Bank International Training Program on Utility Regulation and Strategy. Jamison, likewise, serves on the editorial board of Utilities Policy and is a reviewer for the following journals: International Journal of Industrial Organization, The Information Society, Telecommunications Policy, and Utilities Policy.

The Role of Leadership at the FCC

Jamison has been a critic of not just current FCC Chairman Tom Wheeler's policies, but about his leadership of the agency as well.

In July 2015, Jamison lamented about how the FCC had been politicized – proven, he said, by all the 3-2 rulings the commission has made on major issues like E-rate reform, municipal broadband, spectrum auctions, and net neutrality. He noted examples from his studies of "de-politicizing" regulators around the world. How was this done? Transparency first – and putting the responsibility on the people who seve as commissioners: adjusting expectations, alliances and behaviors in order for the problem to be resolved. “[T]he people who embody the problem have to change themselves or leave.”

In Can the FCC be saved from its chairman? Jamison says the FCC needs adaptive leadership that will help the agency recognize and address harsh realities. He said the commission also needs a kind of leadership that “fulfills the authority vested in the chairman”, providing direction (which is about clarifying the agency’s purpose and role), order (which is about aligning the agency to fulfill its purpose), and protection (which is about protecting the agency from the forces that could hinder its work).

After the election, Jamison wrote again about restoring effective leadership at the FCC. To rebuild the FCC’s credibility, he said, the next chairman must:

Protect staff from outside threats that would derail the agency’s work.

Build a strong staff.

Use political capital wisely.

Jamison concludes:

Strong leadership at the FCC is needed regardless of the new administration’s regulatory agenda. If the FCC’s work remains largely unchanged, the rebuilding is needed to ensure that the agency is strong enough to provide substantive decision-making and to withstand future politically-oriented chairmen. If the administration follows the other extreme and moves to largely disband the agency, effecting the change will require strong leadership.

Congressional Responsibility

Of note, Jamison hasn't only been critical of FCC leadership, but also the oversight of the agency by Congress. As the House Commerce Committee planned an FCC oversight hearing earlier this year, Jamison wondered aloud:

Why do members of Congress value a politicized FCC more than an independent FCC?

In what ways have members of Congress contributed to the partisan divide at the FCC?

He wrote:

One of the FCC’s problems is that Congress does not have a well-defined governance relationship with the agency. Politicians are tempted to meddle in the affairs of independent agencies because these agencies affect almost every voter, and because industry rivals often pay well (think campaign contributions) for regulations that dampen competition. But meddling isn’t oversight. Oversight establishes strategies and standards, respects authority, reflects on results, and holds agency leaders accountable for results.

He said later that if someone wants to destroy the credibility and effectiveness of an independent agency, they can: 1) Take direction from politicians, 2) Promote partisan divides between commissioners, 3) Change the substance of orders after commission votes, and 4) Ignore or manipulate the facts.

“[E]veryone bears the cost of an ineffective FCC,” Jamison warns.

Philosophy

The press has focused on the possibility that the Trump FCC Transition Team may be hoping to transition the agency right out of existence.

(In)famously, Jamison wrote an article for AEI in October asking, Do we need the FCC? His conclusion, “no,” arguing the only reason the agency still exists is 1) inertia, 2) the FCC is valuable to businesses and interest groups that are benefiting from its activities, and 3) it is important to keep radio spectrum allocation independent of day-to-day political pressures. He proposes creating a much smaller independent agency to license radio spectrum, where a spectrum license would be a property right for use and not about content.

But Jamison just doesn't think the FCC is unnecessary; he thinks regulation of all communications networks is unnecessary.

In 2011, Jamison and University of North Texas Associate Professor Janice Hauge co-authored a paper which explored whether regulation of communications networks remains warranted. The authors used the concepts of "public utility," "common carrier," "special infrastructure," and "general purpose technologies" to analyze this question, as such concepts typically are invoked as foundations for continued regulation of communications networks.

After examining the historical development of the public utility and common carrier concepts, the authors found that the essential features of these constructs largely do not fit communications networks today and for the foreseeable future. More recent frameworks for economic regulation also do not fit. Effective monopoly was an essential consideration for denoting an industry as a public utility or a common carrier, and communications networks now generally fail to meet this categorization, they argue.

Absent full retreat from regulation, Jamison preaches "regulatory humility," which Federal Trade Commissioner Maureen Ohlhausen defines as the following approach:

[W]e must work hard to educate ourselves and others about new developments. We must research the effects on consumers and the marketplace. We must identify benefits and any likely harm. If harms do arise, we must ask if existing laws and regulations are sufficient to address them, rather than assuming that new rules are required.

A New Model?

Jamison has asked if the FCC might be better organized under a British model: a small executive team would be responsible for carrying out the work of the agency, subject to a board made up of economists, accountants, engineers, social scientists, and business persons whose professional loyalties are to their professions, not politics. The board would be held accountable by courts, administrative procedures, and congressional oversight, and members would serve staggered terms and could not be removed without cause. But Jamison argues against presidential appointment of FCC commissioners saying, “It appears that regulation by president-appointed commissions is an idea whose time has passed in the US.” He proposes appointments made by a joint committee consisting of equal numbers of Republican and Democratic Members of Congress, board members, and representatives of academia and business.

“The best chance for getting the right kind and right amount of regulation is to have laws that require evidenced-based regulations … and regulatory leadership that values sound regulation over politics,” Jamison wrote.

Conclusion

We're still a long way from knowing exactly how the Trump Administration will treat the FCC and telecommunications policy. Is Mark Jamison advising the President-elect to totally dismantle the agency? Or is he advocating for nominating FCC commissioners who will embrace transparency, accountability, and independence? Will the Trump FCC, before changing policies, offer evidenced-based solutions to our telecommunications challenges like universal, affordable broadband?

We'll be tracking -- and we'll see you in the Headlines.