What's the Middle Point Between a Tech-Ignorant Supreme Court and an Industry-Linked FCC?
We've seen two extremes of D.C. decision-making this week: a Supreme Court baffled by simple technology concepts and an industry-friendly FCC apparently poised to hand telecommunications firms a giant gift. Is this as good as government gets?
.We've seen two extremes of D.C. decision-making this week: a Supreme Court baffled by simple technology concepts and an industry-friendly FCC apparently poised to hand telecommunications firms a giant gift. Is this as good as government gets?
Probably.
At stake in the FCC fight is the idea of "net neutrality," an admittedly complex idea. A neutral internet is one in which internet service providers can't charge companies to ensure different connection speeds and reliabilities. Imagine a highway run by Microsoft that let trucking companies pay higher fees to skip past regular traffic. Or, you know, a highway run by Ford. What the FCC reportedly plans to do is give ISPs flexibility to charge more for higher speeds — which is an obvious economic benefit to those ISPs.
The FCC is comprised of five commissioners, who have a varying level of experience with communications issues. One was a former FCC lawyer; one comes from Capitol Hill; one has worked throughout government. But the chairman is Tom Wheeler, who, as The Guardian's Dan Gillmor succinctly puts it, is a "former cable and wireless industry lobbyist." Wheeler ran the National Cable Television Association for five years and the Cellular Telecommunications and Internet Association for 12. Wheeler's ties to the industry that would benefit from loosened neutrality rules are strong.
Wheeler's deep background in the industry isn't shared by his colleagues on the commission, but the links between the FCC at large and the communications industry are rampant. Ars Technica presented a thorough look, but you really only need to see Open Secret's revolving-door list, showing 165 current and former FCC employees who worked for lobbying firms or the industry before or after their tenure. It's not only commissioners like Wheeler. There are staff attorneys, leads for particular departments within the agency, staff members for the commissioners, people who came from or went to communications companies outside of their FCC service.
That "went to" transition is an important one. People who work for the FCC obviously know that there are jobs waiting in the private sector when their public service has ended. Open Secrets points out one example where that raised eyebrows: FCC commissioner Meredith Baker ruled in Comcast's favor in a key decision shortly before leaving the agency. She now works at Comcast.
The common argument is that this is valuable, that these people bring a depth of insight into the decision-making process that doesn't exist elsewhere. But this doesn't appear to be a concern with members of the Supreme Court.
Supreme Court justices have to deal with a much broader range of issues than do FCC commissioners, but their decisions almost always carry much more weight. So when the Court heard arguments involving the company Aereo, which streams broadcast television to mobile users, the justices' general ignorance about obvious technology issues was baffling.
Sarah Jeong, a law student who was at the hearing, put it bluntly (and with the emphasis you see here): The "entire bench is just not very tech savvy. And neither are the attorneys who come and speak to them." She walks through several ways in which the court displayed a failure to misunderstand basic and intermediary concepts in technology (like cloud computing) and the analogies they used instead (like Justice Breyer's reference to a phonograph).
So is there a middle ground? Can we get decision-making bodies that are immune (or, anyway, more immune) to the lure of corporate salaries, but who also have the basic background in rudimentary issues that will inform their decisions? FCC commissioners work in the real world, giving them that baseline of knowledge. Supreme Court justices are isolated from having to work in the real world, making them less likely to worry about how their decisions affect future employers.
In other words: There isn't a middle ground. We could make FCC appointments life-long, but that seems impractical for a variety of reasons. We could ban commissioners from working for communications companies, which is impractical for other reasons and likely wouldn't solve the problem. We could make the Supreme Court do more homework, but it's hard to se how that's enforceable. Government is and always will be imperfect. And so we have to deal with weeks like this one.
Correction: Jeong pointed out that I attributed a statement she was arguing against to her. It's been fixed. And she also pointed me to her follow-up post, questioning if it matters that the Court is bad at technology. She argues that it doesn't.