5 stages of regulation grief — FCC style

The Federal Communications Commission Chairman, Tom Wheeler’s disastrous set-top box proposal to force companies to “share” their set-top box content with other businesses has faced almost unanimous opposition.  

It has also become increasingly clear that Wheeler’s justification for the regulation — set-top box competition — is a Trojan Horse for his real goal. Which is giving politically favored companies like Google free access to valuable programming so they can exploit it commercially without having to negotiate with the owners.

Indeed, as opposition mounts from creators, civil rights groups, Silicon Valley innovators, organized labor, almost 200 Members of Congress, and many others, the arguments of proponents of FCC Chairman Wheeler’s set-top box regulation keep shifting. We’ve noticed that they seem to follow the famous five stages of grief.

1. Denial

Almost immediately after Chairman Wheeler released his proposal, people began to point out that it was premised on allowing commercial use of copyrighted works without any provisions to ensure proper respect for those rights or existing copyright licenses. The objections built to such a crescendo that first Chairman Wheeler, and then several Members of Congress, asked the Copyright Office to provide an analysis of those issues. But supporters of Wheeler’s plan to impose government regulation over free market contracts and copyright rights denied all that, declaring “this isn’t a copyright issue.”

2. Anger

Perhaps sensing the weakness of their denial, in a fit of pique, proponents of the Wheeler regulations lashed out at the Copyright Office. Worse, a handful of academics went so far as to try to censor the Copyright Office’s analysis before it was written. Then, when the Copyright Office joined hundreds of Members of Congress, and FCC Commissioners Pai and Rosenworcel in pointing out the flaws of the Wheeler regulatory proposal, supporters became unhinged, launching unfounded and false attacks against the Copyright Office’s integrity.

3. Bargaining

When name-calling didn’t work, the trade association for Silicon Valley behemoths that want to use regulation to over-ride the free market (and call it “competition”) tried to offer a revised version of the Wheeler proposal. But this is no “bargain.” It relies on little more than promises not to violate copyright. They still don’t get it — when nearly half the Congress rises up to tell you your approach is flawed, it’s going to take more than promises to get it right, especially given the track record of the proposal’s primary beneficiary when it comes to keeping promises. 

On consumer privacy, which is a major concern since the FCC has no authority to enforce rules against new set-top box providers, Google was caught secretly hacking Apple’s Safari web browser, even when consumers had indicated they did not want to be tracked. And Google routinely leads consumers to pirated copyrighted works, even when they aren’t actually searching for stolen content. Maybe this is why Google recently dropped its once-famous tag line:  “Don’t Be Evil.” Given this track record, it’s no surprise that vague, unenforceable assurances seem so empty.

4. Depression

Having realized that Wheeler’s windfall is doomed, proponents have switched to a scorched-earth policy. The have enlisted the shadiest of their front-groups to threaten Commissioner Rosenworcel’s Senate confirmation unless she ignores the facts and widespread opposition and votes the way they tell her to. The pattern is clear; they have tried to ignore the problem, make personal attacks against those who get in their way, and now they have a strategy based on sheer political force. But like the others, this one is going to fail, too. Because the one thing they haven’t tried yet is to address the facts sincerely. 

5. Acceptance

Don’t hold your breath. These guys are famous for never admitting they’re wrong. So expect to keep hearing attacks on the Copyright Office and empty claims about competition when what they really mean is government regulation. But the truth is out — the Wheeler regulatory proposal is bad for creativity, innovation, competition, and consumers. It’s time for the FCC to abandon the ill-conceived set-top box proposal and allow the marketplace for TV shows and movies to continue relentlessly creating and innovating — just like it always has.

Dan Schneider is the executive director of the American Conservative Union.  Larry Hart is a Senior Fellow for Government Reform with the American Conservative Union Foundation.

The views expressed by contributors are their own and not the views of The Hill.