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April 13, 2016

Congress Steps In on AllVid Rulemaking


Many years ago, after we had released a paper critical of a federal regulatory agency, I got a letter from one of our supporters praising our paper but quickly suggesting that the real blame lay with Congress. Our elected representatives in Congress, our supporter reminded me, write the laws that empower the regulators and also have oversight responsibility. Ultimately, he concluded, the blame and the solution always rests with Congress.

He was right, and I’ve never forgotten the lesson. Congress creates the regulators, Congress empowers them, Congress funds them, and Congress has the power to rein them in if it wills to do so.

That’s why I am encouraged that House Communications and Technology Subcommittee Chairman Greg Walden (R-OR) and committee member Yvette Clarke (D-NY) asked the Government Accountability Office (GAO) to examine the FCC’s recent and controversial notice of proposed rulemaking on video set-top boxes. Congress is obligated to exercise its oversight responsibilities on the unelected regulators at the FCC, and so it’s great to see Walden and Clarke step up to the task.

The FCC is supposed to be an expert technical agency, and its decisions are supposed to be based on data and fact, not on opinions about how a market ought to look or work. But in recent years, the FCC has shown a disturbing pattern of ignoring quantitative data and legal restrictions—even the FCC’s own quantitative data—and plowing ahead with agendas more driven by ideology and politics than by the demands of the communications marketplace. The FCC has even reversed its own decisions made just a few years earlier, even though the facts in the marketplace have not changed.

The new set-top box rulemaking is another example of this. As recently as 2010 the FCC looked at a similar proposal but decided not to proceed. Then, in 2014, Congress removed the requirement for video providers to use CableCARD technology in the set-top boxes they lease to customers. You would think the FCC and Congress both deciding against government technology mandates on set-top boxes would have been the end of it. Alas, no. Bad ideas, like zombies, just keep coming back to life.

So we commend Reps. Walden and Clarke for taking these first steps of Congressional oversight. Beyond the immediate issue that federal tech mandates on set-top boxes are unnecessary and harmful; ultimately, the last few years have proven that it’s time for Congress to dramatically downsize the regulatory scope and authority of the FCC. The role of the FCC is to make sure things work, not to function as a top-down central planning agency for the communications industry.


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