Revolving Door Undermines FCC's Watchdog Role

from the network-neutrality dept

Tue, Sep 16th 2008 5:58pm — Timothy Lee

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.

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matt, 16 Sep 2008 @ 6:46pm

kill off the doctrine that allows it all
All we have to do to stop all forms of this,

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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Chip Rosenthal, 16 Sep 2008 @ 8:51pm

Maybe we could get some balance by appointing regulators from public interest groups, instead of just industry insiders. No, that doesn't seem likely with the current administration. Maybe so with the next.
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Dave, 16 Sep 2008 @ 9:17pm

"EXPERT" TIM SHOULD CHECK HIS FACTS
Hey "expert" Tim:

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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Dr. Klahn, 16 Sep 2008 @ 9:30pm

"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."

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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Allen (profile), 16 Sep 2008 @ 11:18pm

Is a lobbying embargo enough?
To avoid any question of impropriety there should be an employment embargo that prevents a senior regulator taking a position with those they have regulated for a reasonable period.

@ 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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Snidely, 17 Sep 2008 @ 2:39am

Non-compete to the rescue?
Techdirt rails against non-compete contracts, but that's what would help solve the problem. All FCC staffers at a certain rank or above could sign a non-compete contract that, in exchange for 1 year of severance, the staffer could not work for a company regulated by the FCC. Not a great way to spend taxpayer dollars, but it would slow the revolving door somewhat.
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J.Locke, 17 Sep 2008 @ 5:25am

The new Republican paradigm
While lobbyists have always had undue influence in Washington, it has historically been through excessive access to politicians. Since the Gingrich revolution however, the Republicans have worked hard to change that paradigm. Now the lobbyists are not only the people appointed to run the regulation agencies, they ARE actually even becoming politicians themselves and they move freely between the two public interest and private interest positions. The truth is the public obviously doesn’t mind this trend as one can easily see demonstrated in our current presidential election. McCain has a campaign run almost exclusively by special interest lobbyists, from telecom to oil while Obama on the other hand will not even take money from lobbyists, much less allow them to be directly involved in his campaign. There has never been a more clear contrast in candidates positions towards the influence of lobbyists and the special interests they represent. Yet both candidates remain deadlocked in the polls, making it appear that voters really don’t care about lobbyists or the influence of special interests.
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Anonymous Coward, 17 Sep 2008 @ 7:08am

Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
Hey "Shill" Dave:

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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Mike Sullivan, 17 Sep 2008 @ 7:40am

I don't think I'd go so far as to say the revolving door amounts to "low grade corruption," especially when discussing one particular person as an example of the revolving door. Yes, the revolving door has the potential to lead to "low level corruption," but that result isn't inevitable, or even that common. (And I don't think it's fair to use that term when discussing a particular person as an example of the revolving door, when you aren't alleging actual corruption.) Despite the fact that all of the major incumbent telcos and cable operators employ ex-FCC staffers, and they all keep in close touch with FCC officials, the FCC regularly rules against them, during both Democratic and Republican administrations. (The current FCC's approach to network neutrality has not exactly been pro-incumbent.) This situation is hardly unique to the FCC. For example, a natural gas lawyer from FERC, when leaving the government, is likely to end up working at a law firm that practices before FERC or at a company regulated by it. Likewise a food and drug lawyer or scientist from the FDA. If they couldn't go to a company or firm dealing with their former agency, the agency would have a hard time recruiting good lawyers, economists, engineers, scientists, etc., because they would have essentially zero job mobility. The government-wide way to deal with the revolving-door is to put time limits on how long senior agency officials must wait before appearing before their former agencies and to limit the ability of former government employees to appear in connection with matters for which they had responsibility. This approach, while not perfect, allows the government to attract talent and not subjecting agency employees to what amounts to involuntary servitude. Yes, they can still play tennis or get together socially with their ex-colleagues, but it would be hard to stop that, wouldn't it?
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Mike (profile), 17 Sep 2008 @ 11:13am

Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
Tim has added an update to clarify, but to be clear, his original post never said one way or another what the FCC's rules were, just that perhaps they should strengthen the rules. Even if that wasn't clear, it doesn't change the message, nor is it "wrong."

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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Robb Topolski (profile), 17 Sep 2008 @ 11:17am

Imagine, half of all American, blocked! Could have happened, if...
Users have been able to win over nefariousness due to plentiful choices and crafty (and what should be unnecessary) obfuscation. ISP-level DPI is an incredible game-changer. Today's DPI -- which not only can peer into packets but look at trends among them -- and delay, block, or change whatever it doesn't like or recognize -- can win the war. Lack of consumer choice further frustrates the ability to get around bad network policies.

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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Video Savant, 25 Sep 2008 @ 8:25am

Descent from Heaven
In Japan, when a government official "retires" and then enters private industry that was regulated or otherwise associated with his official government duties, it is referred to as "amakudari," or "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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billy, 17 Feb 2009 @ 7:08pm

Re: "EXPERT" TIM SHOULD CHECK HIS FACTS
Only one year? You can take a vacation for one year, then take your cushy job. This needs to be lengthened.At least to 3-5 years. 1 year is way too short. Obviously or we wouldn't be having this conversation. It is way too common for our elected officials to push laws forward only to receive their payoff with a nice 6 figure job after they leave office.
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