Revolving Door Undermines FCC's Watchdog Role
from the network-neutrality dept
In previous installments of my series on network neutrality, I've pointed out that the end-to-end principle is not as fragile as a lot of people assume. Technological platforms have a kind of momentum that make them hard to change once they've become established, and so it's not at all obvious that major broadband providers have the ability to significantly change the Internet's architecture. In my view, this is one reason to be skeptical of making the FCC the nation's network neutrality cop.
Here's a good example of another reason for skepticism: Catherine Bohigian, chief of the office of Strategic Planning and Policy Analysis at the Federal Communications Commission, stepped down effective September 5. Her next job will be with cable giant Cablevision. According to the Washington Post, Bohigian has worked closely with chairman Kevin Martin throughout his tenure. And before her tour of duty at the FCC, Bohigian—like Martin—worked at Wiley, Rein & Fielding, a private law firm specializing in communications law. In other words, Bohigian first worked at a law firm that regularly appears before the FCC, then she became one of the key decision-makers at the FCC, and now she's going to be working for a company that regularly appears before the FCC. It's reasonable to assume that she'll be using her intimate knowledge of the regulatory process—and, perhaps, her close ties to other FCC staffers—to gain regulatory advantages for her employer.
Now, this isn't illegal. It's not even unusual. But this kind of low-grade corruption does give us a window into how the regulatory process works. Theoretically, the FCC is supposed to be a neutral agency that enforces the law in the public interest. In practice, the revolving door between the commission, major telecom companies, and the high-priced law firms that represent those companies means that the people who staff the agency and the people who lobby the agency are largely the same people at different points in their careers. In the next few years, if Cablevision wants to make sure that a particular FCC decision comes out in a way that promotes their interests, they won't just be able to make their arguments via the formal legal process. They'll also be able to dispatch Bohigian to have lunch with key FCC staffers—many of whom will be her friends, and possibly her former employees—to personally plead Cablevision's case. And of course, many of those staffers will be thinking about what their next gig will be, and it will be obvious that their chances at getting a cushy job at a major telco or cable company will be enhanced if they're helpful to those companies while they're still with the Commission.
You could mitigate this somewhat with stricter lobbying rules. For example, Congress imposes a one-year time limit on Hill staffers lobbying their former colleagues after they take jobs in the private sector. Maybe the FCC should beef up its own conflict-of-interest rules. (Update: As some commenters have pointed out, senior FCC officials are are already subject to a one-year cooling off period. This restriction could obviously be broadened or extended in various ways, but it's not going to be feasible to write rules that would eliminate the influence of industry insiders at the FCC.) But shutting down the revolving door completely would be extremely difficult. The regulations the FCC enforces are complicated, and the FCC needs a pool of people with in-depth understanding of those rules in order to do its job. But for people with expertise in the areas of law the FCC administers, the only other use for those skills is representing clients before the FCC. A ban on former FCC staffers working for telecom firms or the law firms that represent them would make it extremely difficult for the FCC to recruit talent, because working at the FCC would essentially be a dead-end job. Once somebody had taken a job at the Commission and developed expertise in telecom law, she'd have no real options for using those skills.
Which means that when we're debating new regulations of the telecom industry, we have to remember that the rules will be enforced by an agency that has close ties to incumbent telco interests. If Congress passes network neutrality regulations, those regulations will be interpreted and enforced by an agency whose key staffers have close ties to the major telephone and cable incumbents. Which means that the results are likely to be more incumbent-friendly—and less consumer-friendly—than network neutrality advocates expect. If Cablevision gets in hot water for a network neutrality problem, they'll be able to dispatch Bohigian and others on their payroll to make sure the company doesn't get more than a slap on the wrist. And, as I'll explain in the next installment, not only can this sort of lobbying render regulations toothless, but in some cases it can actually make things worse by allowing incumbents to tie their competitors up in red tape.
Other posts in this series:
- Censoring The 'Net Is Hard
- Ownership Doesn't Always Mean Control
- Changing The Internet's Architecture Isn't So Easy
- Revolving Door Undermines FCC's Watchdog Role
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Filed Under: corruption, fcc, lobbyists, net neutrality, politics, regulations, watchdog
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kill off the doctrine that allows it all
is get rid of the noerr pennington doctrine. http://en.wikipedia.org/wiki/Noerr-Pennington_doctrine
This is why it all is around, and we're trying to get at the wrong issue if we're attacking the lobbyists themselves.
If Noerr Pennington is removed, then companies will no longer be able to use money to influence legislatino under any form. This is what we need.
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"EXPERT" TIM SHOULD CHECK HIS FACTS
Maybe you should check your facts next time. Bohigian is under a one year ban on lobbying the FCC. But i'm sure you didn't check your facts because this just sounded good to you. Go a head call the FCC's General Counsel's office and confirm that you were wrong. Do you have the guts to admit it and write a retraction?
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Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
If you were a regular reader of tech dirt, you'd realize that anytime that something in an article is wrong, and it's pointed out, it is corrected. The real question is, do you have the guts to admit you're an indstry shill just trying to discredit the article as a whole based on one mistake?
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Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
However, we have updated it to clarify. Thanks for adding to the discussion, though it would be appreciated in the future if you took a less accusatory tone.
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Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
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No options, that is, other than to continue a well-paid career in using those skills, the development and learning of which were paid for by taxpayers -- who might well desire some input as to how those skills are used.
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Is a lobbying embargo enough?
@ David, take a chill pill man, whether or not she isn't allowed to lobby her ex-colleges, doesn't change the central point that the system could use some improvement.
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Non-compete to the rescue?
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The new Republican paradigm
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Imagine, half of all American, blocked! Could have happened, if...
When only two ISPs, Comcast and Cox targeted P2P, they essentially put in a one-way (outward) block on legal P2P traffic on just under a third of America's broadband connections. (17 million of 55 million 2007 subscribers, 31%). Had mega-ISP AT&T joined in alone, it would be half. Or, if either Verizon or Time Warner joined with Charter, Cablevision, Qwest, or Embarq as #3 and #4 to use Sandvine RSTs, then Sandvine would have blocked half of all Americans -- within only 3 or 4 ISPs as customers. Imagine, half of all American broadband subscribers at risk of having their freedoms being blocked at the whim of the monopoly ISP!
The FCC is our regulator for broadband. It acted properly and narrowly in the Comcast case, but the threat continues. While there is still some freedom left, it's fading and it's worth protecting. Sandvine has infected the Comcast network for nearly two years (and still going). The FCC is our cop and until consumers can switch bad broadband providers for good ones, we need that cop on our beat to protect Americans.
Robb Topolski
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Descent from Heaven
No better than what happens in the US and other Western markets, but at least it has a lyrical "truth in advertising" aspect to it.
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