PFF Announces Digital Age Communications Act Project
February 1, 2005. The Progress and Freedom Foundation (PFF) hosted an event in Washington DC to announce the formation of a project titled the "Digital Age Communications Act", or DACA. Its purpose is to review, issue reports on, and make legislative recommendations regarding, the legislative and regulatory framework affecting the communications and information technology sectors. It plans to issue a series of reports, starting in April, and then release a draft bill in the fall of 2005.
The DACA project has not yet released any reports or legislative proposals. However, when it does produce reports and recommendations, they are likely to entail less regulation, wider property rights regimes, more reliance upon markets, and changes to the policy making process. This project is just one of many diverse efforts to advise or influence the legislative and regulatory process on telecommunications reform.
The PFF announced the membership of the DACA project's advisory committee, and the subject matter and membership of each of five working groups. These groups are named "Regulatory Framework", "Spectrum Policy", "Institutional Reform", "Universal Service/Social Policy", and "Federal/State Framework".
The PFF also released a collection of essays that outline the topics that the DACA project will address. The essays were written by the PFF's Kyle Dixon, Raymond Gifford, Thomas Lenard, Randolph May, and Adam Peters.
Several persons involved in the DACA project spoke at the February 1 event. Ray Gifford, the President of the PFF, stated that "the communications laws need reform for the 21st Century digital age".
Nancy Victory, a partner at the law firm of Wiley Rein & Fielding, outlined some of the areas where statutes or regulations need to be reformed, including universal service, intercarrier compensation, and state and local authority to regulate national and competitive industries. She also said that the current statutory regime is based upon buckets or stovepipes, and "is due for an extreme makeover".
David McIntosh, a former Member of Congress, and at Mayer, Brown, Rowe and Maw, discussed the Communications Act. "It is time to rewrite it," said McIntosh, and "Congress knows that". He said that the DACA project will be helpful to the Congress.
The membership of the advisory committee include more Republicans that Democrats. However, Larry Irving, a former staff assistant to Rep. Ed Markey (D-MA), and head of the National Telecommunications and Information Administration (NTIA) in the Clinton administration, is a member of the advisory committee. He stated at the DACA launch event that "telecommunications has never been particularly partisan", or "ideological".
Irving continued that the current regulatory regime is based upon assumptions of scarcity, monopoly and the criticality of time and distance. But, he said, times have changed.
Boyden Gray, a partner in the law firm of Wilmer Cutler Pickering Hale & Dorr, spoke about the need for institutional reform, both in regulatory agencies, and in the Congress. For example, he said that the Department of Justice's (DOJ) Antitrust Division, and the Federal Trade Commission (FTC), both of which review and set guidelines for mergers and acquisitions and competition related conduct involving communications and technology companies, cannot communicate with personnel in the White House about these activities. Gray, who was White House Counsel to the first President Bush, argued that this should be changed.
He also discussed the institutional problems associated with the Congressional committee system. He said that too many committees had jurisdiction in this area. The House Commerce Committee and Senate Commerce Committee have jurisdiction over telecommunications, while the House Judiciary Committee and Senate Judiciary Committee generally have jurisdiction over antitrust matters involving telecommunications, and the House Ways and Means Committee and Senate Finance Committee generally have jurisdiction over trade agreements, including those with provisions regarding telecommunications.
James Miller, the Chairman of CapAnalysis, an economic, financial, and regulation and litigation consulting firm, said that new legislation is needed. He argued that the FCC should be defining property rights, letting competition take place, and writing itself out of business.
He also discussed the agency process. He said that the Sunshine Act keeps people at agencies like the FCC from reasoning together, and that this is "not conducive to good outcomes". He also stated that the FCC needs to be reformed, but did not offer details.
DACA Advisory Committee. The DACA project is broader than the persons affiliated with the PFF, a Washington DC based think tank. The project has an advisory committee with twenty-three members, including many former high ranking government regulators. It includes two former FCC Commissioners (Anne Jones and Richard Wiley), two former heads of the NTIA (Larry Irving and Nancy Victory), two former FTC Chairmen (Timothy Muris and James Miller), and three former state public utilities commissioners (Mitchell Wilk, Paul Vasington, and Allan Thoms).
The advisory committee also includes two former Members of Congress (David McIntosh and Jack Fields), one former Solicitor General and Judge of the U.S. Court of Appeals (Ken Starr), and several other former federal officials.
Many of the advisory committee members have backgrounds that involve communications regulation. Many are now practicing lawyers. In contrast, few have backgrounds in technology or intellectual property. One notable exception is Esther Dyson.
DACA Working Groups. Much of the work of the DACA project will be conducted by five working groups. These working groups consist of seven to ten members, and include many law professors, economists, and think tank scholars, both at the PFF, and at other entities.
These groups include some former top economists at the FCC, including Howard Shelanski (now at UC Berkeley) Gerald Faulhaber (University of Pennsylvania), Tom Hazlett (Manhattan Institute), Michael Riordan (Columbia University), and Gregory Rosston (Stanford), as well as other economists. Other former FCC employees are not well represented. The PFF's Kyle Dixon, a former top aide to FCC Chairman Michael Powell, is on two panels.
There are also many law professors in the DACA working groups. The backgrounds of the law professors and economists, like the backgrounds of the members of the advisory committee, tend to be in telecommunications and antitrust. There is less depth in information technology and intellectual property law.
However, Douglas Sicker (University of Colorado at Boulder), a computer science professor, is a member of one working group.
Also, John Duffy a University of Chicago trained professor at George Washington University who specializes in patent law, is on two panels. He has published widely on patent law, and written a few articles that deal with telecommunications. See, "The FCC and the Patent System: Progressive Ambitions, Jacksonian Realism, and the Technology of Regulation", 71 University of Colorado Law Review 1072 (2000); and "Technological Change and Doctrinal Persistence: Telecommunications Reform in Congress and the Court", 97 Columbia Law Review 976-1015 (1997).
Duffy spoke at the DACA launch event. He commented on the institutional reform working group that he will co-chair. "Institutions are important." He said that the major focus of this group will be the institutional structure of the FCC. "That was created three quarters of a century ago, based on what was then a very daring and new theory that if legislatures, particularly the Congress, could simply delegate massive amounts of power to neutral expert commissions, good government would result."
"No one really believes in that anymore," said Duffy, "and yet the Commission's
structure has remained unchanged in three quarters of a century."