The FCC, under Chairman Brendan Carr, has issued a Public Notice asking for public input on eliminating regulations that create unneeded burdens or that stand in the way of the deployment, expansion, competition, or technological innovation. The Notice is titled: ‘In Re: Delete, Delete, Delete.’
The Public Notice asks for comments of various types:
- Cost-benefit Considerations. The FCC invites the public to comment on regulations where the cost of compliance is more than can be justified by the benefits. They ask commenters to take a stab at documenting the cost/benefit of proposed rule changes.
- Experience Based on Implementation. This asks if some rules are too complex based on the experience of companies that must comply. Are there rules that are routinely waived because of the complexity?
- Marketplace and Technological Changes. Have marketplace changes or new technologies made some rules obsolete?
- Barriers to Entry. Are there regulations that act as a barrier to entry of new companies? (I must note that many such regulations are on the books at the request of monopoly providers).
- A Broader Regulatory Context. Are there rules that are now obsolete due to later regulations that supplanted them?
- Consideration of Court Decisions. This asks if there are regulations that might be considered in light of Supreme Court rules like Roper Bright that says that regulatory agencies shouldn’t undertake any major regulation that hasn’t been explicitly directed by Congress?
I have no doubt that every large company and lobbyist will trot out their wish list of regulations they would love to see eliminated. I have little doubt that there is somebody who dislikes every regulation on the FCC books. But there are a lot of obsolete regulations. For example, it’s ridiculous in today’s environment for the FCC to have rules about video channel lineups. There are a ton of rules on the books for technologies that are no longer in use.
It’s worth noting that the FCC already routinely ignores obsolete regulations, as do all regulatory agencies. While it’s cleaner to get old regulations off the books, it’s nearly as effective to not consider or enforce old rules that no longer apply.
The FCC also has to consider the source of various regulations. The agency does not have the authority, on it’s own, to eliminate a requirement imposed in the past by Congress. Eliminating such rules is fine as long as nobody objects, but doing so also opens the agency to lawsuits, which would be a colossal waste of time.
It’s a good idea for any regulatory agency to do this periodically as long as this is done well. This will hopefully not become an excuse to let large ISPs, wireless companies, TV and radio station owners, and others walk away from needed regulation.
What is most interesting about this effort is that Chairman Carr came into the position with a fairly long list of new regulations he’d like to see the FCC tackle. At the top of his list is a new look at the FCC’s role in regulating Section 230 related to web content.
I don’t really like having rules on the books that are note enforced. Someone should be able to look at the published rules and know what the rules are. Similarly, there are a fair number of laws that are unenforceable due to court decisions. I think these should also be rescinded. As I understand it, rescinding a rule is the same as amending a rule under the Administrative Procedures Act, so the removal of the rule should go through the NPRM, public comment, and Report and Order process. Finally, though there is an invitation to submit rules for removal, people always have the opportunity to petition for a rulemaking to do the same, though these petitions seem to take years or decades to be acted on.