Are regulators losing sight of the target objectives? Are we sometimes confusing the means with the end? Do we even know where we are aiming?
Big questions. What do I mean?
When Navdeep Bains was Minister of Innovation, Science and Economic Development, there was a very clear statement summarizing his communications policy objective: “Canada’s future depends on connectivity”. It was clear, concise, and measurable. The telecom sector was told that there was an understanding of the tension that exists as we balance affordability, quality, and coverage in the achievement of those objectives.
Sometimes, it can be easy to lose sight of the target when we don’t pause for a moment to surveille the situation.
Earlier this week, I wrote “Regulators regulate”. If the only tool you have is a hammer, it is tempting to treat everything as if it were a nail.
Take a look at what is going on south of the border with the FCC seeking to resurrect network neutrality regulations. As Professor Daniel Lyons of Boston College writes (quoting Justice Scalia), “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried…”
After three years of quietly effective telecom regulation, the Federal Communications Commission has roared back to life with a new Democratic majority and an obsession to reimpose 2015’s Title II order on broadband providers. Back then, the AEI Tech Policy blog argued that these rules were, at best, unnecessary and, at worst, harmful to consumers and innovation. America’s experience since then has vindicated the decision to repeal net neutrality, leading one to wonder why this has become the Commission’s most pressing concern.
He rhetorically asks (and then answers), “if broadband providers have voluntarily adopted net-neutral practices, what’s the harm in enacting them into law?”
One concern is the chilling effect such rules have on innovation. For example, network slicing, which many providers have implemented since the original net neutrality overturn, can enhance 5G network productivity. This allows wireless providers to dedicate a portion of their capacity for specific services rather than general network packet delivery, thus improving the consumer experience for latency-dependent services.
He argues that net neutrality proponents have strayed from their roots, losing sight of the target. “When Professor Tim Wu first coined the phrase, he was concerned in part that without a neutrality principle, broadband providers would block disfavored speech online.”
Unsurprisingly, allegations that net neutrality’s repeal would mean consumers couldn’t get abortion information or receive the internet “one…word…at…a…time” were unfounded. This is because, as Wu himself notes, broadband providers also have incentives not to block content: the more content a consumer can reach, the more they’re willing to pay for access.
So why is the FCC seeking to re-introduce Net Neutrality? Regulators regulate. There is always the potential for regulatory creep. And, therein we find the concern. According to Professor Lyons, FCC Chair Jessica Rosenworcel has stated she has no intention of regulating broadband rates, despite those power being part of the proposed regulations. While this might be so, what happens with the next administration? Poorly drafted legislation – or trying to apply one set of regulations for something else – can lead to unintended consequences.
That is what I meant about being more concerned with the ‘means’ than the ‘end’. What problem are they trying to solve?
This is a problem that I think we have come to appreciate in Canada. The government is trying to apply Broadcasting Act legislation to internet content, expanding the role of the CRTC to act as an arbiter of new media.
What are we trying to achieve? How will we measure success?
Let’s look at how the government’s describes the legislation.
- C-11: “The Online Streaming Act modernizes the Broadcasting Act and helps ensure Canadian stories and music are widely available on streaming platforms to the benefit of future generations of artists and creators in Canada.”
- C-18: “The Online News Act aims to ensure that dominant platforms compensate news businesses when their content is made available on their services.”
In the government’s own words, these are the objectives of these Acts. Reading the legislation, one might be justified asking if we might have gotten lost along the way. As the government and the CRTC move forward with development of regulations that implement the Acts, how do we ensure we aren’t losing sight of the target?
When I load an address into my GPS, the system calculates a route and tells me how far the system expects me to travel. I’m told how long it expects the journey to take. Along the way, the system makes mid-course adjustments, considering traffic, routing around unexpected roadblocks along the way.
The Online News Act, and the Online Streaming Act are the first parts of Canada moving to regulate internet platforms and content.
What are the real objectives? Where are we trying to go? How will we know when we successfully reach our target? How do we know we are making progress toward the ultimate objective? Are these pieces of legislation still the best route?
When driving, we find alternate routes to avoid traffic jams and roadblocks. Is it time for the government to pause, reboot the system and recalculate?