FCC Pressed to Adopt Default Deregulation

WASHINGTON — The media industry-backed Free State Foundation is again renewing its call for the Federal Communications Commission to put its regulatory framework in reverse, and it has at least one member singing from the same hymnal.

Back in 2001, FSF president Randolph May proposed the FCC reverse its presumption on forbearing from regulation and instead assume the communications industry is competitive, requiring those who wanted to retain regulations to prove, through clear and convincing evidence, that they were still in the public interest.

Congress gave the FCC authority to forbear from — or not apply — regulations it concludes are no longer in the public interest, but the presumption is that rules still are unless the FCC can be convinced they are not.

The FSF renewed that call last year, and now is doing so again, noting that Republican FCC member Michael O’Rielly recently added his voice to the choir. May suggests using a rebuttable presumption during the FCC’s periodic, congressionally mandated review of all its regulations “as the result of ‘meaningful competition’ between service providers.”

O’Rielly appears clearly on board. At an FSF policy conference in June, O’Rielly pointed to “the vibrant competition in the various sectors of the communications marketplace” and said “not only should the commission review all proceedings with a deregulatory eye, but it should also use available tools, such as forbearance and mandatory reviews, to eliminate unnecessary regulation … This presumption could only be overcome by clear and convincing evidence to the contrary.” He also included a laundry list of reforms he’s backing in a blog last month.

O’Rielly, a former congressional staffer, argued that Congress should add the deregulatory presumption to the Communications Act, but May contends there’s no reason for the FCC to wait for that to happen. Given the current divided Congress, a change to the Act is also a longshot.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.