One Obama ex­ec­u­tive or­der that makes sense

A man­date to trim out­moded rules is one Trump should keep

The Washington Times Daily - - COMMENTARY - By Ran­dolph J. May

In July 2011, Pres­i­dent Obama is­sued an ex­ec­u­tive or­der that, at least on pa­per, ac­tu­ally makes good sense. It’s Ex­ec­u­tive Or­der 13579, Reg­u­la­tion and In­de­pen­dent Reg­u­la­tory Agen­cies, urg­ing in­de­pen­dent agen­cies such as the Fed­eral Com­mu­ni­ca­tions Com­mis­sion (FCC) to es­tab­lish plans for pe­ri­odic ret­ro­spec­tive re­views aimed at elim­i­nat­ing out­moded reg­u­la­tions.

Here’s the heart of Ex­ec­u­tive Or­der 13579: “[I]nde­pen­dent reg­u­la­tory agen­cies should con­sider how best to pro­mote ret­ro­spec­tive anal­y­sis of rules that may be out­moded, in­ef­fec­tive, in­suf­fi­cient, or ex­ces­sively bur­den­some, and to mod­ify, stream­line, ex­pand, or re­peal them in ac­cor­dance with what has been learned.” Re­fer­ring to his ear­lier ex­ec­u­tive or­der ap­pli­ca­ble only to ex­ec­u­tive branch agen­cies, Mr. Obama de­clared that “in­de­pen­dent agen­cies, no less than ex­ec­u­tive agen­cies,” should con­sider whether

their reg­u­la­tions pro­mote “eco­nomic growth, in­no­va­tion, com­pet­i­tive­ness, and job cre­ation.”

In ret­ro­spect, it’s easy to sur­mise that Mr. Obama’s ex­ec­u­tive or­der urg­ing ret­ro­spec­tive re­view of ex­ist­ing reg­u­la­tions must have been is­sued with a wink and a nod. Few reg­u­la­tions were elim­i­nated dur­ing his ten­ure while sig­nif­i­cant new ones con­tin­ued to pile up at an un­prece­dented rate. Ac­cord­ing to the Com­pet­i­tive En­ter­prise In­sti­tute’s Wayne Crews, the Obama ad­min­is­tra­tion al­ready has com­pleted 551 “eco­nom­i­cally sig­nif­i­cant” rules — those that are pro­jected to have eco­nomic ef­fects of at least $100 mil­lion — com­pared to the 390 eco­nom­i­cally sig­nif­i­cant rules com­pleted dur­ing Pres­i­dent Ge­orge W. Bush’s eight years. With a month to go, this year’s Fed­eral Reg­is­ter page count al­ready has set an all­time record at 87,000 pages.

While Pres­i­dent-elect Don­ald Trump has said he will re­verse many of Mr. Obama’s ex­ec­u­tive or­ders on Day One, there’s no rea­son to jet­ti­son Ex­ec­u­tive Or­der 13579. In­stead, he ought to urge his ap­pointees to the in­de­pen­dent agen­cies, in­clud­ing those of­fi­cials who are des­ig­nated in “act­ing” ca­pac­i­ties, promptly to ini­ti­ate rig­or­ous ret­ro­spec­tive re­views of ex­ist­ing reg­u­la­tions.

Cer­tainly, the Fed­eral Com­mu­ni­ca­tions Com­mis­sion would be as good a place as any to start get­ting rid of reg­u­la­tions that long ago out­lived their orig­i­nal pur­pose. Tom Wheeler, the Obama ad­min­is­tra­tion’s FCC chair­man, never took the pres­i­dent’s ret­ro­spec­tive re­view or­der se­ri­ously — or, for that mat­ter, Congress’ ex­press di­rec­tion in the Com­mu­ni­ca­tions Act that the FCC en­gage in a bi­en­nial re­view of all telecom­mu­ni­ca­tions reg­u­la­tions to re­peal or mod­ify any rules that are no longer in the pub­lic in­ter­est.

Dur­ing the past two decades, ef­fec­tive com­pe­ti­tion has de­vel­oped in most seg­ments of the com­mu­ni­ca­tions mar­ket­place, with dig­i­tal-age tech­nolo­gies en­abling more abun­dant con­sumer choices among ser­vices and ap­pli­ca­tions. De­spite this, the FCC has made no mean­ing­ful ef­fort to en­gage in ret­ro­spec­tive re­views with the ob­jec­tive of elim­i­nat­ing or cur­tail­ing reg­u­la­tions that no longer make sense. In­stead, it acts as if it in­hab­its a time warp, with a mind­set stuck in an era when mo­nop­o­lis­tic Ma Bell pro­vided tele­phone ser­vice over cop­per wires and three tele­vi­sion net­works dom­i­nated the video mar­ket­place.

That era is gone for­ever. In to­day’s dig­i­tal broad­band en­vi­ron­ment, com­pa­nies com­pete to pro­vide in­no­va­tive In­ter­net, video, data and voice ser­vices and ap­pli­ca­tions across var­i­ous plat­forms, whether these plat­forms em­ploy fiber, wire­line, cable, wire­less or satel­lite tech­nolo­gies, or com­bi­na­tions of these.

The FCC needs to take ac­count of cur­rent com­pet­i­tive mar­ket­place re­al­i­ties in as­sess­ing whether legacy reg­u­la­tions are nec­es­sary. This in­cludes not only re­views of reg­u­la­tions adopted decades ago, such as woe­fully out­dated me­dia own­er­ship rules and re­quire­ments that pre­vent the dis­con­tin­u­ance of lit­tle-used, eco­nom­i­cally in­ef­fi­cient legacy ana­log tele­phone ser­vices, but also re­cently adopted rules, such as the new pub­lic util­ity-like net neu­tral­ity man­dates and overly ex­pan­sive pri­vacy reg­u­la­tions.

Re­call that Mr. Obama’s Ex­ec­u­tive Or­der 13579 urged the FCC, in ex­am­in­ing whether to re­tain or mod­ify reg­u­la­tions on the books, to con­sider whether the rules pro­mote “eco­nomic growth, in­no­va­tion, com­pet­i­tive­ness, and job cre­ation.” These are cer­tainly per­ti­nent con­sid­er­a­tions, es­pe­cially be­cause Mr. Trump has said that achiev­ing more ro­bust eco­nomic growth and job cre­ation are pri­or­i­ties.

In en­gag­ing in reg­u­la­tory re­views, rig­or­ous, em­pir­i­cally-based, cost-ben­e­fit anal­y­sis and con­sid­er­a­tion of the least re­stric­tive al­ter­na­tives are cru­cial. But above all, the agency must not turn a blind eye, as it has too of­ten in re­cent years, to the ex­is­tence of ac­tual and po­ten­tial mar­ket­place com­pe­ti­tion.

When the Trump ad­min­is­tra­tion ap­pointees gain ma­jor­ity con­trol of the five-mem­ber com­mis­sion some­time af­ter Jan. 20, in con­junc­tion with the Com­mu­ni­ca­tions Act’s own reg­u­la­tory re­view re­quire­ments, they ought to take se­ri­ously Mr. Obama’s ret­ro­spec­tive reg­u­la­tory re­view ex­ec­u­tive or­der — even if Mr. Obama’s own ap­pointees didn’t. In­deed, there’s no rea­son rig­or­ous reg­u­la­tory re­views, with the sen­si­ble aim of cur­tail­ing out­dated reg­u­la­tions that in­hibit eco­nomic growth and job cre­ation, should be a par­ti­san is­sue at all.

ILLUSTRATION BY GREG GROESCH

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