Reforming the FCC

To facilitate data-driven decision-making, the FCC must develop a more coherent and comprehensive commitment to collecting relevant data. At present, the agency lacks the most basic data about how the wireless spectrum is being used and where broadband services are available, for example. Moreover, the agency has failed to make the information it does have in an easily accessible form that can invite outside parties to analyze it and remix it in interesting ways. This failing is not just a missed opportunity. Rather, it fundamentally undermines the agency’s ability to execute on its mission. With respect to the prices paid for high capacity lines by businesses (so-called “special access pricing”), for example, the GAO excoriated the FCC’s lack of data that, as it put it, is necessary to determine whether the agency’s “deregulatory policies are achieving their goals.”^[158] In short, the FCC has not developed an effective strategy either for collecting data or distributing it.^[159]

On the broadband front, there are huge opportunities for the FCC’s data collection efforts to play an important role in public policy development. To date, the FCC has abdicated that responsibility, setting up a measurement regime in 1998 (which defined broadband as “200 kilobits” and measured availability by whether anyone in a zip code has broadband service) and leaving that system unchanged for a decade.^[160] In the absence of FCC leadership on this front, different states took up the mantle of broadband policy, emphasizing the importance of broadband measurement and mapping and proceeding without the benefit of federal guidance or support.^[161] Just recently, Congress unanimously passed the Broadband Data Improvement Act, requiring the FCC to take such a leadership role in this area.^[162]

In addition to evaluating the extent of broadband deployment, the FCC (and/or the FTC) could also help to more clearly define level of broadband service and educate consumers in broadband markets as to what they should expect from their provider.^[163] Today, for example, no effective disclosure regime exists to make clear what degree of “latency” (or delay) exists in broadband networks or what “up to 1 megabit per second” really means. With a better understood disclosure regime in place, providers would be pressured to compete more vigorously along quality dimensions (as opposed to merely price). Indeed, competition for lower calorie, lower sodium, or lower fat foods only emerged once an understandable disclosure regime for nutritional information was developed and implemented.^[164]

The FCC’s decision to end the collection of some quality measures in telephone markets suggests a lack of appreciation for the point that, especially in competitive markets, sunlight on the services offered by providers is even more important. In making this decision, the FCC concluded that the absence of similar obligations on other carriers rendered the legacy regime suspect.^[165] In short, this Order heads in the wrong direction. The right question is how can the agency develop a systematic portrait of the marketplace so that its data collection efforts are accurate, can inform consumers, and can enable data-driven policymaking in a sound and prudent manner.^[166]

On the wireless spectrum front, it is widely appreciated that spectrum is both a valuable and underused resource. One challenge in facilitating the development of a robust secondary market is that many would-be lessors of spectrum licenses do not know who to contact. Thus, an initial challenge for the FCC is to establish a user-friendly spectrum registry that identifies the different bands of spectrum, a contact person, and stated terms for leasing access to spectrum.^[167] By posting this information, the FCC would enable entrepreneurs, policymakers, and ordinary citizens to evaluate both potential policy reforms and new business strategies.

In developing new databases of information, it is not sufficient merely to make them available to the public-the FCC also should enable citizens to manipulate information and use it in creative ways.^[168] At present, unfortunately, the FCC databases are not only difficult to search, but they do not give citizens the opportunity to use that data and make connections between different data sets-say, broadband deployment and job creation. Consequently, the agency has failed to spur what one commentator calls “wikinomics”-i.e., enabling user-generated content.^[169] This trend is just now taking root, as groups of ordinary citizens are combining information related to a variety of topics, ranging from crime rates in Chicago neighborhoods and L.A. communities at risk of fire violations, using technologies like Google Maps to make interesting connections.^[170]

Over the last several years, the FCC has often viewed the job of engaging the public as a chore, not a responsibility and opportunity. Significantly, the public should not merely be viewed as interested and informed consumers-say, individuals interested in the best opportunities to purchase broadband connections-but also engaged citizens. Improving the transparency of how the agency operates, upgrading its website to make it more usable, and involving the public in data collection on matters ranging from spectrum use to broadband deployment are all important steps. But such steps must also be followed up with efforts to engage the public.

In soliciting public engagement, the FCC should seek to find ways of getting feedback that is most conducive to shaping regulatory policy. Consider, for example, the difference between a short email expressing an opposition to media consolidation as opposed to a more developed reaction to a specific proposal. To be sure, a large number of emails expressing a basic level of opposition to a particular course of action is a very valuable signal. To help justify its action, however, the agency must develop well reasoned arguments, ranging from ones offered at hearings where information is first presented to citizen panels where individuals can deliberate on issues like a jury and offer their views as a body.^[171]