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Wednesday, December 16, 2009

Regulatory Creep In Evidence
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Several of us have cautioned against inviting the government to regulate broadband services because of the dangers of regulatory creep. Once the government has its regulatory claws in the flesh of a service, neither cost, common sense, nor custom will restrain it.

Congress has regulated broadcasting for eighty years. That regulation started, of course, simply to deal with interference between and among various stations. It has since expanded to include, just by way of example, a prudish regulation of content the government regards as indecent, rate ceilings for advertisements by the ruling class (i.e., political electioneering spots), and a failed attempt to dictate what is "fair" and "unfair" when it comes to the coverage of controversial issues.

But regulatory meddling along the lines just mentioned at least involves matters of some weight. A bill just passed by the House demonstrates that there are no practical limits to such meddling and that no matter is too inconsequential when it comes to state oversight of an industry. Congress now, we have learned, wants to regulate the volume of broadcast advertisements.

The bill is the brainchild of Congresswoman Anna Eshoo (D-CA), who apparently is offended that some televised advertisements are louder than the programs that precede them. Now the whole effort is silly, to say the least, and volumes could be written on just how nonsensical it is. How, for instance, does anyone know what the metaphysically correct volume for an advertisement is? Must the volume of an exploding bomb to be the same as that of a whisper? More fundamentally, is this really a national priority? What effect will this have on something that might actually be important in a rocky economy, such as job losses in an already struggling industry? One could go on seemingly indefinitely asking questions probing for some inkling of serious import in this bill, but that effort, itself, would be senseless.

There is a larger point, however, that is worth highlighting. The Eshoo bill points out just how nitpickingly insidious government regulation can become. That's why I am astounded that commentators and groups who purportedly care about free speech would be so willing to ask for government regulation of the Internet - the great modern engine of liberty and free speech.

Whatever its faults, the market responds pretty quickly when private enterprises behave in ways that a significant number of people find offensive or inappropriate. The same cannot be said for the State. If the government starts regulating the Internet, and it starts getting it "wrong" or overstepping (which Rep. Eshoo's bill suggests is all but inevitable), it will be near impossible to rein it in. The greatest threats to free speech are not from companies that provide services in response to public demand, but from the levers of state power manipulated by those who are sure they know better than the rest of us what content we should or should not be able to access, how we access it, and just how loud it should be.

posted by W. Kenneth Ferree @ 11:59 AM | Capitol Hill , Internet Governance , Mass Media , Media Regulation

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