Roasting the Pig to Burn Down the House: A Modest Proposal
The most up-to-date version of this piece can be found in the Duke Law Scholarship
published at, 7 Journal on Journal on Telecommunications & High Technology Law 95 (2009)
This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting's place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss - regulations that cost broadcasters significant amounts of money but have no impact on their behavior.
Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best - a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting's spectrum usage, then it is probably a path worth taking.
Date of Authorship for this Version
regulatory policy, wireless frequencies, broadcasting
Benjamin, Stuart M., "Roasting the Pig to Burn Down the House: A Modest Proposal" (2009). Duke Law School Faculty Scholarship Series. Paper 155.