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Abstract:
In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the Twenty-First Century, this entails making its data available online and easy to access. If government data is made available online in useful and flexible formats, citizens will be able to utilize modern Internet tools to shed light on government activities. Such tools include mashups, which highlight hidden connections between different data sets, and crowdsourcing, which makes light work of sifting through mountains of data by focusing thousands of eyes on a particular set of data.

Today, however, the state of government's online offerings is very sad indeed. Some nominally publicly available information is not online at all, and the data that is online is often not in useful formats. Government should be encouraged to release public information online in a structured, open, and searchable manner. To the extent that government does not modernize, however, we should hope that private third parties build unofficial databases and make these available in a useful form to the public.

transparency, accountability, corruption, websites, XML, RSS, mashups, crowdsourcing

Abstract:
The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators and scholars, most famously Ronald Coase, have advocated that a more efficient allocation would be achieved if government sold the rights to the spectrum and allowed a free market in radio property to develop.

A new school of scholars, however, has begun to challenge the spectrum property model. While they agree with Coase that command-and-control spectrum management is highly inefficient, they instead propose to make spectrum a commons. They claim that new spectrum sharing technologies allow a virtually unlimited number of persons to use the same spectrum without causing each other interference and that this eliminates the need for either property rights in, or government control of, spectrum.

This Article aims to show that, despite the rhetoric, the commons model that has been proposed in the legal literature is not an alternative to command-and-control regulation, but in fact shares many of the same inefficiencies of that system. In order for a commons to be viable, someone must control the resource and set orderly sharing rules to govern its use. If the government is the controller of a commons - as proponents of a spectrum commons suggest it should be - then in allocating and managing the commons the government will very likely employ its existing inefficient processes.

Recently the FCC designated a 50 MHz block of spectrum in the 3650 MHz band as a commons. This Article looks at that proceeding and finds that in creating a commons, the government has not escaped the inefficiencies of command-and-control regulation.

spectrum, commons, open access, fcc, regulation, radio

Abstract:
The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators and scholars, most famously Ronald Coase, have advocated that a more efficient allocation would be achieved if government sold the rights to the spectrum and allowed a free market in radio property to develop.

A new school of scholars, however, has begun to challenge the spectrum property model. While they agree with Coase that command-and-control spectrum management is highly inefficient, they instead propose to make spectrum a commons. They claim that new spectrum sharing technologies allow a virtually unlimited number of persons to use the same spectrum without causing each other interference and that this eliminates the need for either property rights in, or government control of, spectrum.

This Article aims to show that, despite the rhetoric, the commons model that has been proposed in the legal literature is not an alternative to command-and-control regulation, but in fact shares many of the same inefficiencies of that system. In order for a commons to be viable, someone must control the resource and set orderly sharing rules to govern its use. If the government is the controller of a commons - as proponents of a spectrum commons suggest it should be - then in allocating and managing the commons the government will very likely employ its existing inefficient processes.

Recently the FCC designated a 50 MHz block of spectrum in the 3650 MHz band as a commons. This Article looks at that proceeding and finds that in creating a commons, the government has not escaped the inefficiencies of command-and-control regulation.

spectrum, commons, open access, fcc, regulation, radio

Abstract:
Congress, state legislatures, and the Federal Communications Commission are all considering proposals to reform local video franchising to promote competitive entry. Consumers should welcome such reforms. We estimate that consumers pay an extra $8.4 billion annually in the form of higher rates and fees as a result of video franchise regulations. In addition, these price increases generate $2 billion in deadweight loss, or value that consumers forego annually because higher prices induce some consumers to go without cable television. Unlike previous studies, our estimates include the cost of nonprice concessions (such as PEG channels) and franchise fees, in addition to the market power effect of cable franchising. We analyze a variety of options federal and state officials have to reduce these costs, including exemption of telephone companies from cable franchise regulations, FCC pre-emption of unreasonable franchising practices, and federal or state adoption of open entry laws to replace local franchising.

cable, franchising, FCC, video, television, franchise

Abstract:
Congress, state legislatures, and the Federal Communications Commission are all considering proposals to reform local video franchising to promote competitive entry. Consumers should welcome such reforms. We estimate that consumers pay an extra $8.4 billion annually in the form of higher rates and fees as a result of video franchise regulations. In addition, these price increases generate $2 billion in deadweight loss, or value that consumers forego annually because higher prices induce some consumers to go without cable television. Unlike previous studies, our estimates include the cost of nonprice concessions (such as PEG channels) and franchise fees, in addition to the market power effect of cable franchising. We analyze a variety of options federal and state officials have to reduce these costs, including exemption of telephone companies from cable franchise regulations, FCC pre-emption of unreasonable franchising practices, and federal or state adoption of open entry laws to replace local franchising.

cable, franchising, fcc, video, television, franchise

Abstract:
This Article argues that lack of public safety communications interoperability is the result of what economist Mancur Olson called a collective action problem, and that it is the result of the national policy of public safety spectrum segregation and balkanization. It explores how market forces can be employed to solve collective action problems and also surveys several successful commercial interoperable communications networks shared by public safety users and private customers. It also applies the lessons from a series of case studies and suggests an outline for a spectrum policy that could harness market forces to alleviate the collective action problem responsible for lack of public safety interoperability.

public safety, first responders, interoperability, communications, spectrum

Abstract:
The orphan works problem in copyright occurs when a scholar, artist, or other creator wishes to use part of an existing work in her own work but cannot find the existing work's owner in order to ask permission. Today many works go unused for fear of litigation. This has become such a serious problem that the Copyright Office recently concluded a proceeding to investigate possible solutions. This paper explains the full extent of the orphan works problem and proposes a novel solution that is practical. We also examine and critique other leading proposed solutions that we conclude are unworkable.

We propose a new orphan works affirmative defense to infringement actions similar to the fair use affirmative defense. If, after a reasonable search in good faith, no copyright holder for a work is found, the work may be used without the user being subject to liability. As with the fair use statute, there should be a codified non-exclusive list of factors that a court will consider in determining whether the user-defendant carried out a reasonable search in good faith.

copyright, orphan works, intellectual property

Abstract:
Surprising experimental economics discoveries about tort reform, Nano-technology regulation and Public safety interoperability.

tort reform, court system mercatus center, McCabe, english rule, court fees, contingency fees, alastair j. walling, nanotechnology, CTA nanorobots, satya thallam public safety, interoperability, jerry brito, police, radio communications, FCC, public safety agencies, frequencies, networks

Abstract:
The term "midnight regulations" describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period -- the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.

The regulatory review process that every president since Richard Nixon has used to check his own administration's regulations is now operated by the Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing all proposed new significant regulations. The problem is that while the number of regulations proposed spikes during the midnight period, the resources available to OIRA remain constant.

Although the problem is perennially highlighted in the press, few satisfactory solutions to the phenomenon have been proposed. One possible solution to address the effects of midnight regulation on regulatory review might be to cap the number of regulations agencies may submit to OIRA for review during a given time-period.

oira, midnight regulations, regulatory review, regulation

Abstract:
MERCATUS REPORTS:

1. Guidance for Guidances
2. Spectrum Commons
3. COMMENTARY: The Katrina Success Story You Didn't Hear.

FCC, federal spectrum policy, property rights, radio spectrum, regulatory systems, thirdy way, ronald coase, government control of spectrum, commons approach, command and control regulation, policy making

Abstract:
The term "midnight regulations" describes the dramatic spike in new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. While widely acknowledged as problematic due to lessened presidential accountability during the midnight period - the time after the November election and before Inauguration Day - midnight regulations present another problem that receives little attention. The number of regulations promulgated during that period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their costs.

The Office of Information and Regulatory Affairs (OIRA) is in charge of reviewing all proposed new significant regulations. While the number of proposed regulations spikes during the midnight period, the resources available to OIRA remain constant, setting the stage for a potential collapse of the review process.

Few satisfactory solutions to the midnight regulations phenomenon have been proposed. In this paper, however, we propose one possible solution that addresses the effects of midnight regulation might have on regulatory review: Cap the number of regulations agencies may submit to OIRA for review during a given period.

Midnight Regulation, OIRA

Abstract:
Two separate but similar initiatives attempt to apply a scientific approach to improve government decision-making and results: performance management and regulatory analysis. Both initiatives seek to identify the nature of the problems government is trying to solve, develop alternative solutions, and evaluate the effectiveness and costs of the alternatives. Both require measurement of costs and outcomes. Both involve rigorous analysis to identify whether, and to what extent, government actions cause particular results to occur. Their analytical methods can be used ex ante, to evaluate alternative prospective courses of action, or ex post, to assess what consequences actually flowed from the alternative that was chosen and identify opportunities for improvement.

Yet performance management and regulatory analysis rarely cross paths. Scholars who specialize in performance management tend to be in public administration or policy analysis departments; scholars who focus on regulatory analysis tend to be economists or lawyers. Ideologically, performance management is usually viewed as a means of making government more effective and customer-focused; regulatory analysis is often characterized as an attempt to throw sand in the gears of the regulatory state. For the U.S. government, the most prominent performance management directive is the Government Performance and Results Act (GPRA). The principal source of regulatory analysis mandates is Executive Order 12,866. In federal agencies, the plans and reports mandated by GPRA are usually the responsibility of the chief financial officer or a senior official in charge of management. Regulatory analysis is usually the responsibility of a policy office that writes regulations or an economic analysis division. Even in the President's Office of Management and Budget (OMB), which oversees both performance management and regulatory analysis, responsibility is divided. GPRA guidance and other performance-related initiatives are under OMB's deputy director for management. Regulatory analysis is overseen by the Office of Information and Regulatory Affairs (OIRA).

Due to these divisions, there are significant unexploited synergies between regulatory analysis and performance management. GPRA, and the performance-oriented practices it spawned, provide a vehicle to improve the quality of regulatory analysis in both executive branch and independent agencies. Similarly, the theory and practice of regulatory analysis suggests some opportunities to strengthen federal performance management in ways that more fully implement the spirit of GPRA. This Article explores the actual and potential linkages between regulatory analysis and performance management in theory and in practice.

performance management, regulatory review, oira, regulation, benefit-cost, gpra, omb