Warm twwelcome to our cspan audience. Im a selfconfessed cspan junkie. My mom, may she rest in peace, she always worried when i told her i was a cspan junkie, not really knowing what i meant by that. But im always pleased and grateful when cspan is here and welcome to the cspan audience. This years annual Conference Follows on the heels of the tenth Anniversary Gala last december. So with next years annual conference, well be in double digits for this event too. It just confirms the old adage that time flies when youre having fun and i might add when youre busy as well. Almost every year i say some of you know this. I say that our annual Telecom Policy conference just keeps getting bigger, better and more impactful. Well, as long as it remains true, im going to keep saying it. Even though we had to reschedule this years conference because our first date, march 14th, happened to be the only snowy day this winter in washington, i think this years conference upholds the tradition. A quick glance at the Program Shows why the conference is a must attend event for anyone interested in communications, internet and hightech law and policy. I know you will agree we have an Outstanding Group of speakers and program sessions. The program that you have here, its also on our website if you need another copy or want to download it near the top of our home page. The theme for this years conference is a new direction for communications policy, less regulation, more investment and innovation. With a new fcc and a new congress in place, the opportunity is ripe for charting a free market oriented direction for Communications Law and policy. As most of you know, at the fcc under the leadership of new chairman who will be with us for our lunch session today, the agency is already charting a new free market oriented direction. Well be spending a lot of time today, of course, talking about the implications of this new course, including what it means for innovation and investment, but most importantly what it means for our nations consumers. I have a hunch that at one time or another today the subject of the fccs new Net Neutrality proceeding or open internet proceeding as the previous fcc chairman preferred or restoring Internet Freedom proceeding, as the current fcc chairman prefers in any event that proceeding, by whatever name you want to call it, im sure will come up and it should because its an important proceeding for the fcc. Aside from the conversation that im going to have with fcc chairman at lunchtime, we have a stellar lineup for todays program. The First Program will feature howard gelanski and boyden gray. In your program you see the titles and bios. Then were going to follow this session with an all star panel lineup. And then immediately following the panel session, were going to break a short time for a very nice buffet lunch. I guarantee you its going to be nice, but i hope most of you are here for the program and not just for the lunch. Then were going to have a conversation with chairman pie. Were honored to have the two acting directors of the federal trade commission with us for the after lunch session. Its ted libski and tom paul will be featured at that session. And then winding up, michelle connolly, who is a professor at Duke University and a member of the Free State Foundations board of academic advisoradvisol offer some final thoughts. Now, remember to tweet if youre a tweet er. The handle i think we have the twitter handle on each table but its hashtag sffconf9. And then before we get started i just want to take a second to acknowledge and thank some of our Staff Members that are here. Ckathy baker is our events coordinator. She has an awful lot to do with this event and we appreciate her. Lets give a round of applause if we could for kathy. [ applause ]. And then i want to acknowledge the scholarly work by two of our Staff Members that are here and their contribution. Senior fellow seth cooper. So seth is going to be moderating the program after lunch and Research Fellow mike horney. And then finally i want to introduce to you our newest senior fellow, ted blama. Ted joined us in mid march. Ted is a phd economist and a lawyer and really combines the law and economic expertise. Ted, if you could just stand up so people will see you, who you are. [ applause ]. Finally i want to thank my life lauri. She actually does an awful lot of work for the Free State Foundation that goes unrecognized, a lot of behind the scenes work. When i say that, im not even referring to what she does tolerating without too much grumbling the often insane hours that i put in really for the Free State Foundation. So i appreciate everything that lauri does and maybe you could thank her with me. [ applause ]. With that, lets get started with our first session. Im going to introduce our speakers first. With their indulgence and yours too, im going to hit some of the highlights that are in their bios. Again, i refer you to the more complete bios in the brochure. Our initial speaker and really keynoter for the day is howard gelanski. Howard is a professor of law at Georgetown University law school and a partner as well at the davis polk law firm. And importantly for our purposes today of course, hes the former administrator in president Obamas Administration of the office of information and regulatory affairs, which is within the office of management and budget. That position is often referred to as the regulatory czar. Im not sure whether howard likes to be a czar or not, but thats the fact. And howard, again, just briefly, hes a former director of the ftcs bureau of economics. And he also served previously as chief economist of the fcc from 1999 to 2000 and a senior economist for the president s council of economic advisors during president clintons administration. So again and howard as well as ted blah ma has a phd in economics and also a law degree. The topic of this session and you will see how howard and the next speaker im going to introduce have the experience and expertise to talk about it. Its Lessons Learned improving regulation and government administration. Its hard to find someone more qualified than howard to talk about that along with boyden gray whos going to be the commenter reactor to howards comments after howard delivers some opening remarks. Now, c. Boyden gray is the Founding Partner of boyden gray and associateassociates. Hes a former u. S. Ambassador to the European Union and a former white house counsel. Also very pertinent to our program today, he was counsel back in the first bush administration, george h. W. Bush to the president ial task force of regulatory relief, for which he wrote the original executive order 12291. We dont want to get hung up on numbers here and i have a hard time remembering but he can fill us in on what that was. Boyden, someone told me once when i had another ambassador on our program, that once youre an ambassador, that that title never lee leaves you, that you always ambassador. If i forget to refer to you as ambassador, i ask your indulgence with that. The other thing i want to say about boyden before we get started is he left off of his resume probably the most important what i think is the most important position that he held during his illustrious career. A former chair of the section of Administrative Law and regulatory practice of the aba. That might not strike you as being as important as ambassador to the e. U. , but im a former chair of that section as well of the aba. So i considered that to be important. Boyden, when i was serving my year as head of the section of Administrative Law, i was asked whether i could be ambassador to the e. U. At that time and because i had that other job i had to decline that. I wasnt able to do it. But anyway, now you know about his other position. So with that introduction, im going to turn it over to howard to get us started and then well get boydens reactions. Good morning. Thanks very much, randy. Its a real honor to be here and share the podium with you and boyden, whos really a founder of Regulatory Reform in the executive branch. Anybody who has worked in my position has sort of a pantheon of people who are founders and foundational thinkers in the area and boyden is certainly one of them. What i want to talk about today is regulatory process and Regulatory Reform. I think there are some Lessons Learned, at least that i learned over the last four years in the Obama Administration doing regulatory review about whats hard about regulation, what works and what doesnt work and why we need to be very careful when we embark on a series of fixes through legislation or other kinds of means, because theres some very good things in our regulatory system, theres some things that can use fixing, but fixing them is hard and were going to want to proceed very carefully. I think thats an Important Message to get across right now, that there is a lot of fairly radical rethinking of the federal governments regulatory program. I tend to think radical rethinkings are good things because they stir things up and they get people thinking. But as long as people think with a cool head and are willing to acknowledge that some steps they may take are wrong, back up, try a different path and also that we dont rust too quickly into legislation that is actually an inferior regulatory system. I would start with the premise that the United States has probably the best, most transparent and most accountable system of regulatory process in the world. One of the jobs was to go around the world, often with our ambassad ambassador and to negotiate with foreign governments or entities on Regulatory Reform issues on regulatory harmonization issues. In many places regulation happens completely out of a black box. Theres some kind of summary of a rule or description of intent to regulate, some preliminary report about what the effects of the rule will be and then, boom, a regulation pops out of some back room. And there are very few bases on which one could challenge that rule and get it rethought. Compare that to what we have under the administrative procedure act. There are a few exceptions but by and large an agency has to issue a proposed rule. That rule has to go out for Public Notice and comment. The agency then has to issue a final rule that is built upon the record that includes that notice and comment and the response that the agency makes to those comments. And at the end of it all the agency is subject to judicial review. This works fairly well. Lots of rules get challenged in court. Lots of rules get remanded or struck down in court. Sure thats a costly process. But if you think of the incentives that it generates down through the stream for agencies to do a good job in rule making, one could see that its not a bad system. The public is involved early on and the public has a chance to call the agency to account at the ends. That is rare. Not only that, but the public gets to comment on is the rule. What the public gets to see in support of that rule, especially if its an economically significant rule, is the Regulatory Impact analysis. Not a white paper describing rule, not a white paper describing what some people think the effects might be, but the analysis, things that can get challenged, thinged that can be brought before a court. One wants to think twice before one backs up and fundamentally changes a system that actually has even if not perfect, even if not costless, a pretty good system of transparency and accountability built into it. Its a very rare kind of thing. Let me back up and talk about the things that i think are Lessons Learned about things we need to fix in regulation and what we might do to come up with an even better regulatory system going forward. So what is the job of a regulator or a Regulatory Review Office . I throw that in only because that was my job. So the first is to identify a real problem. This may sound like an obvious statement, but it is not always the case that regulations that agencies issue address problems that are genuine. That is to say occurring or very likely to occur. Sometimes one sees regulation that is well meant to get ahead of a problem to stop it before it starts. But without sufficient grounding to ensure that the problem is actually going to occur. That is a very Weak Foundation on which to do regulation because then the benefits are always a difficult thing to make salient and to prove. Become even harder because not only are the benefits hard to examine because theyre in the future, theyre highly contingent on the problem even occurring. Its very hard to make a good case for regulation and very hard to make a case to the parties that must bear the cost of that regulation when the regulation to begin with, the benefits of the regulation are contingent on the problem actually occurring. Agencies could do a better job making that case. Its not typically what agencies are set up to do. Look at their statutory authorization. They look to a man dadate from congress or some event that has happened out there and they respond. The communications aspect of explaining what theyre doing and way theyre doing it is not always done very well. Sometimes thats because thats a hard case to make. Thats all the more reason agencies should have to get out there and make the case. Identifying a real problem and communicating and making that case convincingly i think is the first step in rule making. The next step is to identify potential Effective Solutions to that problem. And i Say Solutions because again another shortcoming that i find even within our overall quite good regulatory system is agencies tend to move very quickly towards a solution to a problem. That is not always the case by any stretch of the imagination. But one of the things that ive found as administrator was that many proposed rules on very significant issues came into the Office Without much examination of regulatory alternatives beyond the proposal that the agency was making. Regulatory alternatives are important, discussing them, even analyzing them in a quite rigorous way, because they show the public when the rule goes out for notice and comment, what are the other things that the agencies thought about and rejected or at least became less convinces were appropriate solutions to the problem. Different alternatives will have different cost benefit profiles. Different alternatives will elicit different kind of data and comments from the public. And actually the agency may find out that something they, inside their sort of closed circle of people working on the rule, they may find that theres information that convinces them they made a mistake, that they should pursue one of those alternatives. Identifying potential Effective Solutions to that problem and even if the agency proposed one of those to nonetheless be transparent in discussing and explaining what alternatives there might be. This, by the way, is in the executive orders that govern la regulatory review in the executive branch. I can throw out a lot of orders. All of these great executive orders that actually since president reagan, every administration regardless of Political Party has seen fit to reiterate and strengthen on very similar principles of regulatory review. So alternatives are a big one. Now the third thing that im about to identify here is probably in some sense the most controversial. And that is to determine that the proposed solution and indeed any alternatives that might be discussed and offered up as possible proposals or possible rules down the road proposed solutions should not impose costs that outweigh the benefits. That would be a disaster for a number of reasons. First of all, there are rules that this society chooses to put in place that have nonquantifiable benefits, distributional objectives, fairness objectives, objects of social inclusiveness. One may agree or disagree politically with those objectives, but if they are disclosed, if they are well achieved by the rule and if the rule says part of the reason were going to achieve these costs is so that same sex families in the military can have access to base housing and feel more included and be better soldiers, how do you put a dollar value on that . Pretty darn hard to do so. Its a dignitary interest. Theres not a quantifiable benefit. You would not be able to have that rule if you had a rigid quantified beftds out way quanti out weigh thats squishy. That said, i do think its important that the public know very clearly what it is paying to get those kinds of benefits. So the disclosure of costs, all costs that could be quantified or identified even if not well quantity tfied that are going t incurred in the pursuit of those benefits, as a matter of democratic process have to be put out there clearly and transparently. Agencies hate to disclose costs and they love to tout benefits. One of the jobs of a Regulatory Review Office is to right that balance. Now, i think were actually going to see some very interesting things happen under some of president trumps executive orders. If one has to repeal two rules to issue a new rule, something thats at least aspirationally sought in one of the president s executive orders will be quite hard to do. Were going to see the agencies flipping on costs and benefits as they come forward urging repeal of certain rules. To repeal a rule, you have to make a rule. You have to make a rule repealing the old rule. Under the administrative procedure act you cant just say never mind were not doing that anymore. Once that rule is out there and published, it is a change in regulatory policy to repeal it. Youve got to do that on a full apa process, subject to judicial review. You have to explain why your previous record was wrong and why facts and evidence today suggest repealing the rules. The things that were the benefits of the rule that was originally passed are now going to be the costs of repeal. One saw this highlighted very well in an Interesting Exchange on fox news between Chris Wallace and epa administrator scott pruitt. Administrator pruitt talked about repealing a bunch of Greenhouse Gas emission rules. Chris wallace said what are you going to do about the 90,000 cases of asthma that those rules are preventing . Now that was a very interesting question to ask. If youre going to repeal the rules, theres a cost to society. Agencies are going to come around and say those rules were not so beneficial, but they were really costly. The opposite of what agencies really do. Even within our very good system there are incentives for agencies to buy us costs and benefits in the direction thats going to achieve the policy they want to achieve. So an independent review office is important. I think that the office we have in place does a pretty good job. I think the ability of courts to review the record is yet another backstop. How much farther one would want to go in imposing cost benefit requirements or mandatory layers of judicially reviewable review of those rules is i think a hard question. I worry a little bit about some Regulatory Reform efforts that say make wider reviews mandatory to the agencies in every case with cost benefit analysis and make those reviews judicially reviewable. If you do that youre going to get collusion between oira and the agencies from the very beginning not to make the rules but to make the rules as judgment proof as possible. One wants a separation between the review office and agencies not collusion. Anything that would make any of those Communications Evidence that the rule should be over turned will eliminate those communications and i fear put the review office into more of a collusive posture. One area where one wants to be careful about reforming regulatory review. I just want to come back and talk a little bit about cost benefits and return to a couple of examples that i think highlights some of the challenges we face in regulation. The political dynamics of regulation are always fraught. Theyre always difficult just because inherently the political economy of regulation is unbalanced. Costs tend to call on a fairly narrowly defined set of parties. They tend to be relatively shortterm in their occurrence, relatively measurable. Any time theres a rule, the people who are going to have to pay for that rule, they know theyre going to have to pay for it. Theyre often not the parties who are going to directly receive the benefits. Thats not actually a problem. If theyre the party causing the costs, they should pay for them whether they get the benefits or not. You impose a burden on society, you pay to fix it. Pretty basic economics. Thats actually not the most common situation in the world. Often the parties are fixing a problem that is more social in nature or is one where they are simply the least cost avoider. And there it is a harder case and one needs to think a little bit more broadly about justifying those costs. Theres always a strong and vocal and organized constituency to oppose the costs. Nothing about benefits. Benefits will be more speculative, more probablistic, farther in the future. If youre a coal mine and youre told to reduce the amount of coal dust in the atmosphere, you know immediately what its going to cost you to do that. If youre a coal miner, they may sound good but you dont know if youre going to get black lung disease. Theres no salient benefit except that your employer is telling you my operating costs are going up, im going to trim some benefits or jobs. If we were to leave regulation to open politics, rules wouldnt happen. Some rules would but in response to emergencies or true crises. The result is we have a political dynamic of very strong public advocacy groups saying failure to regulate is a disaster and advocates for the parties that are going to bear the cost saying no regulation is going to kill jobs. The truth is also somewhere in between. Regulation is not a binary do dont. Its a game of tradeoffs. Its the price of analyzing how we solve problems in ways that best balance the costs and benefits. The parties that bear the cost need to acknowledge that there are benefits and work to find a better way to achieve them. The parties that are going to get the benefits and advocate for them need to understand there are costs and you cannot ignore the consequences of imposing those costs and work for more efficient ways of achieving regulation. Right now thats not the political die maynamic but tha the dynamic within the agencies. One concern i have is that it will interfere with this process fundamentally. Agencies need to be able to build a record, not have that record challenged midstream but wait until it is completely built and then that rule can be challenged in court. There are proposals out there to have interim records that are part of a proposed rule challengeable in court. That prevents the agency from perfecting the record. I use perfection in quotes but to doing a better job with the record based on the feedback that it gets back from the Public Comment process. It actually allows challenges at an earlier stage. The way that agencies can avoid these unbalanced political dynamics actually solve real problems, is to have the opportunity to build a full record. That way it will come to a court to decide is there really evidence of benefits, is there really evidence that these benefits justify the costs, has the agency done a good job of both the costs and benefits side and make a determination based on that evidentiary record, based on the analysis. If we start leaving it to the political realm, we run into significant problems and much lower quality rule making. Now i want to return to what i think is at the foundation of sound regulation. The identification of real problems and the identification of really Workable Solutions i do think agencies goet off on the wrong foot and falter when there are rules generated because of a belief or a big movement that claims that there is a problem to be solved without real evidence that the problem truly exists. In 2007 i wrote an article. It was called Something LikeNetwork Neutrality, regulating with more questions than answers. And i went through sort of both sides of the multiple sides of the Network Neutrality debate. Each side could be right depending on the answers to some very hard questions, questions about investment incentives, questions about the marginal value of different investments, questions about the true economic incentives that different parties would have to discriminate or not discriminate. I tried to make the case that those questions were not well answered. And i wrote the article because i was perplexed by the incredibly adamant arguments that we had to have regulation now, today, yesterday to stop all of this horrible stuff that wasnt yet happening. I think that its important as the fcc goes forward in reexamining rules that were issued in the last administration to look carefully at what questions we have the answers to, what questions we dont have the answers to, and not to be afraid to deregulate where mistakes were made but also not to be afraid to stick with regulation where the evidence shows it would not hurt investment and in fact would achieve some good. I think thats why i sort of started out by saying i think a radical shift in direction could be a healthy thing from time to time. It can change perspective, get people to think very differently and reexamine things that have been long assumed. But i think one cannot blindly in one direction regulate, deregulate. Its got to be a period fundamentally of reanalysis and reexamination. It is my hope thats what will happen as the Commission Goes forward. One final note. Often the actions ofpilliried i. Insufficiently covered in my view was the fact this really was the comparison of a restoration of the privacy function to the agency with much broader jurisdiction and much more experience. The federal trade commission, it wasnt leaving the pace unregulated. It was changing the structure and approach to regulation. That message didnt get out there very well. I commend chairman pie and acting chair for their excellent editorial on that issue. It happens to be right, so they should stay the course. I would urge all agencies as they go forward in regulating or deregulating to adopt a similar posture. Do what is right, do what careful examination of a rigorous record would show to be correct and dont worry about the noise on the outside. Thank you. [ applause ]. Thank you very much, howard. That was very stimulating, important address to lead off the conference. And now well hear from ambassador gray. After ambassador grays remarks, hopefully well have time for a few questions from the audience. I always like to do that when we have time. Ambassador gray . Thank you very much. As a preliminary matter, i want to make it absolutely clear that howard has done a really good job of maintaining the credibility of oira which is absolutely essential to keep a close monitoring on the value and the utility and the importance and the need, especially the need for regulatory activity. And im there was certainly obviously temptations, pressures to relax. The last administration, howard never did it. Oira is still as strong as it used to be. It needs a bigger budget, but its in good hands and good shape. So my thanks to you, howard, for doing not thanks but commendation for maintaining a very strong tradition. I also want to say at the outset that im really sad, randy, that you didnt take that job. Ill tell you one of the best benefits of it was that i lived in a residence that had been built or renovated by a russian oligarch, who was so disfavored in russia that he thought he would live out his years, if he could, in belgium rather than russia, where he was being pursued by all manner of people that he had bilked. So he did this marvelous residence. But he was so bad it turned out that belgiums would never give him visas. So the state department picked up the residence and thats where i lived. When i was introduced to it, i had these local Intelligence Officers tell me this was the safest residence in the entire European Union system. We know the radical cell that lived in belgium that was responsible for the attacks in paris i should make clear just so an urban myth doesnt get started. That was only a joke. But now that i know about the russian connection, if it were true and if i had been offered that job, then im glad to know what boyden just related. You dont know the full yet. The Intelligence Experts said that i had the highest in safety equipment, triple mylar windows. But the center piece of my safety were huge, thick, six inch doors protecting my bedroom. Just think of what you missed. These were known as fourth century doors. And i didnt have enough courage to asking is a fourth century door and why . Why not third, fifth or 21st . Fourth century. You might wonder. Its that door which in order to for you to have a half hour to call the police in case youre under attack, could withstand anything that could be thrown at it in the fourth century. Very useful thing. I used to tell this story because i had to give lots of speeches after people had too much to drink and didnt want to get into the Net Neutrality or whatever it was and then my Communications Specialist came up to me one day and said you know, you must stop talking about the fourth century door because its going to heap disgrace upon yourself, your mission and your country. Why. No such thing. But they are wrong. What do i have. What you have is not a fourth century door, but a forced entry door. So you can see how its so easy to get mixed up and language sometimes, well, i dont argue about the quantifiable costs, it is very important to get as good a handle as you possibly can on what is actually going on with the rule that is about to be implemented. And facts are very important. To understand is there a real problem, is very important. And i commend, again, our speaker for looking at that. I dont have much time so im just going to go off into a little bit of a tangent. The identification of a problem is where he started, and it really is the key. And often agencies will just take flight and they will take the infamous or famous chevron doctrine, any hint of ambiguity in a statute is authority to go flying off in the sunset. And sometimes the problems that they seek to cure just plain dont exist at all. One of the best lines at the end of his life and one of his last decisions in the famous case, the case involving epa and Climate Change and tailoring and im saying this knowing that the president has apparently just pulled out of the paris accords, the harms that epa was arguing just plain didnt exist and the statute talked in terms of big, big installations creating big, big pollution emissions, and this is not a co2 kind of thing. Co2 can come out of a house, come out of office building, you cant cover everything. And the statute talked of 200 ton emissions limit and epa said well, that doesnt make sense. Were actually the statute, what they actually the statute actually meant was 100,000 tons. So thats where were going to start and were going to taylor the statute to fit what we think is the problem. At one point the case, one of the cases said maybe you have to make that jump from 200 on thes to 100,000 tons, you may have taken the wrong route in figuring out whether there is a real problem. There wasnt really a problem and in my opinion, and the opinion said were not going to sit by on the dock and wave goodbye to epa as it embarks on its voyage of discovery. Were not going to sit idly by on the dock and wave goodbye to epa on its voyage of discovery. In the Net Neutrality rule which was affirmed by a panel of the court of appeals as you all know, then went to rehearing which was denied, two dissents emerged, and they were powerful enough from judge brown and cavanaugh, judge cavanaugh, they were powerful enough that it prompted retaliatory opinion. If you want to know the current state of thinking about how to look at these issues with a broad brush, assuming that the hard work of figuring out what are the costs and benefits and whatnot have been done. Assuming thats been done, if you want to look at the big picture i would recommend that you read these three opinions, the lead opinion by sarah bossen, rebutting, depends on your point of view t two dissents and Janice Rogers brown steal as line from scalia mimicking his were not going to sit by, she doesnt talk about the dock but does say were not going to wave goodbye to the fcc and let it Wander Around in the sunset going wherever it feels like going. And this is part of the problem. Agencies can take off in full flight under the way chef ron works, and thats where some of the most reform oriented efforts are being pointed. And its the courts that i think are going to have to do this first. I dont know thou congress fixes something that was a court problem to begin with, but i think the courts are watching this very carefully and i think youll see some of the best writing on this in some of the opinions of the new justice about the relationship between nondelegation, and the chevron doctrine. I think that whats going to happen is the courts, this may be a hope more than prediction but the courts begin to pin the agencies or really more precisely the congress back, and say you cant do this, its too broad, theres no call for any action you have not identify add real problem, just thrown up your hands and say go regulate. Thats not enough. We have nothing to review on, and chevron doesnt apply when you have a nondelegation problem, doesnt apply when you have a really big issue like Net Neutrality. So were going to decide what the law is and decide maybe your law is too vague, broad, and openended. And you better go back and do it right and start again. Now, i dont know that well see any cases thrown out like schecter was in 1937, but i think well see a lot of case law in the future narrowing the statutes to the point where its going to give congress a little kick in the you know what and make them be a little more precise. Ill end with the question because i did a lot of legislative work when i first came to washington. And you know these markup sessions where food fights would take place, and they were really good drama. Really good entertainment. And i have asked the audiences how many people have ever heard of an amendment to the third degree . Any hands going up . I see one. Maybe one there in the back. That sort of discouraging in a way. How many people have actually been to a markup session . More hands but not very many. You would think most of the hands would go up. Thats the problem. We need more markup sessions and more amendments to the third degree. Thank you very much. For the opportunity to speak. [ applause ] well, if youre like me you are probably thinking gee, maybe we could just have the rest of the day, you know, with a session with these two. Unfortunately were not going to be able to do that. But weve got a little more time. I will say when i gave that introduction of ambassador gray, i didnt mention that he has his degree from the university of North Carolina, i think he was editor in chief of the law review there and as many of you who know me well and heard me say previous conferences im a double duky, i have two degrees from Duke University. So only someone thats exceptional like ambassador gray that went to the university of North Carolina would ever actually appear on one of my programs. That was terrific. I want to ask a question actually. No one touched on this, but among the audience here its a topic that everyone is familiar with and i think you, too, your reactions would be useful. Chairman pai instituted a new practice at the fcc a few months ago, i think he has now decided its going to be permanent, and the practice is that he releases draft order, mprm or orders at the same time he circulates them to his fellow commissioners, that is three weeks before the fcc sunshine meeting. The issue came to a head, first came up basically, during the last round of the Net Neutrality proceeding when Many Congress people and others were asking to see the draft order, and it was considered at the time and still may be by many to be fairly controversial because it hadnt been done. But now its been done. Im going to ask them about it during our lunch conversation and probe a bit. But you two have had so much experience with the agencies. What is your reaction to this new way of doing business at the fcc in terms of making public these draft rule making proposals . Someone go first. If you wish. I think we have to see how it pans out. There are possible pros and possible cons. To the extent that a chair after commission is releasing a draft order that comes out of the chairmans office, that other commissioners have not had a chance to weigh in on, or that perhaps only a subset of commissioners had a chance to weigh in on, its there is a potentially problematic aspect in that it brings the public in at an early preliminary stage before the commission has done its internal process. And while i think on one hand it can be viewed as transparency, on the other hand it can really interfere, i think, with dialogue among the commissioners and their releasing of a regulation that actually speaks for all of the commission in a more balanced way. So, there is the possibility that its that it would led to can be a strategic play to limit the input of other commissioners on a controversial issue. Certainly at oira i fought tooth and nail against opening up all of the discussions that oira was having with the agencies and the interim drafts. For exactly the same reason. We needed the a ability to tell the agency youre wrong, fix this, ask questions, then a draft out to the public that had gone through that deliberation. I can see some positive things but i think we have to see how it works out. Boyd, do you have reaction at all . Well, this may not be exactly on point but the internal deliberative process is very important, having been involved in it many times. I am partial to the as an outside e sometimes i wonder if it doesnt shield agencies from the kind of transparency that howards talking about and so there is a balancing act that goes on here and its a tricky one and its going to continue to be a tricky one, i think, probably for a long time. Im going to ask one more question, then we may have time for one or two from the audience. Howard, maybe this is to you. As you may know, the fcc when it released its notice of proposed rule making for this round of the Net Neutrality saga it specifically is asking for a cost benefit analysis. Most of you know the independent agencies are not required by the executive orders if i still understand this, to do these, but its something that the fcc is doing and many people recommended that the agency do for the reasons that you talked about. I want to know is that how common is that among other independent agencies to undertake what i think will be a fairly formal cost benefit analysis by the fcc in your experience. Thanks. Its been a mixed bag. Even sometimes the same agency will sometimes do it and sometimes not. For example in the case of the cfpb. My own view is that all agencies should have to do this. I do not believe, and i think im the only oira administrator to say this, at least senator portman tells me i dont think that the independent agencies should necessarily be under oira review. I do they they should have the obligations, however, to undertake the cost benefit analysis that the executive order requires because otherwise i think the public really doesnt have the full kinds of information and record it needs to comment in an informed way. Thank you. For all those standing back there weve got there are scattered seats. Its fantastic to see this huge crowd. Thats gratifying, but there are seats up front, even if they have a sign that says reserved you can occupy them now. That will be fine for now. What i want to do maybe is take one or two questions from the audience, i want you to raise your hand, if you have a question, and im going to recognize you and wait for the mike, wait for the mike to be brought to you and lets keep the questions succinct, please. Looks like alden abbott. Thanks very much, randy. Alden abbott, heritage. Question for howard. There has been a number of great growth in guidance documents and informal source of quasi rule making which really dont fall under terms of executive order and some have raised concerns that these are raise a real problem apart from concerns about the due process and so on but cost benefit analysis, these are things that are not seen by oira. Should that change . Whats your view . Its a great question. And in fact, senator langford has held hearings on this in which i participated. I think as a general matter, it would not be practical for an office like oira to review all guidance documents. When they are done right are interptive, they are nonbinding, they do not create new regulatory obligations. I think to review every one of them in advance to determine whether they violate those boundaries would be an enormous amount of work and probably not an efficient use of resources. On the other hand agencies do on occasion owver step. They are challenged and told that they cant do that. I think what there has to be is some kind of rule that basically says that a guidance document cannot have effect if it does not if it has not gone through a certain process internally at the agency, and been posted in a way that is transparent with explanation of how it relates to the underlying rule. What that would mean an agency could not come out and say our sidens document here means you cant store those chemicals in this way anymore. To take one controversial example. We used to say you could but now you cant. Wait, thats a change in regulatory policy. Dont you have to do that by sflool so by having a public posting requirement and explanation requirement, and maybe even a Public Consultation requirement for significant guidance a lot of the programs problems can be resolved. There is a terrific bush 2 administration document, 2007 document published in the federal register which is omb guidance on guidance. We actually recirculated it to agencies, shed really matters. And i think thats something that could be embedded in statute to make the requirements even stronger. Boyden, do you, on the issue of documents have anything you want to add or i think this will be the last comment, so if there is anything you want to add at all, briefly, please go ahead. Well, i agree i dont think its a routine matter you can possibly look at every guidance document, but i think for the ones that really have impact youll hear about them and youll know about them. So im not really worried about it. My ending comment would be change the subject back to the Consumer FinanceProtection Bureau and the fact it is shielded, youre not even supposed to look at anything they do i think, im surprised you mentioned them, but they are free of all constrapts and all accountability and transparency and they spent, because they are to take their funding comes from the fed. The feds require the fund certain amount and prohibited from intervening at all. In whats the cfpb does. Congress has no power of the purse, but he does have to testify occasionally and he did testify and turned out he they had spent several hundred million on the renovation of their headquarters, and one of the subcommittee Chairmen Committee said to him well, who was in charge of this rather lavish renovation . His response to this member of congress was, what does it matter to you . Okay. Well, i think what matters to me right at this moment is that i think youll agree that it would be would have been difficult to find two other people with more experience and background scholarly experience but more importantly practical experience in the area of regulation and to talk about Lessons Learned, so please join me in thanking them both. [ applause ] so, what were going to do now im going to ask the panel to come up for our next program, and get situated. I dont expect that to take more than a couple minutes, then well resume. We are going right into the next panel which is the view from the ftc, overseeing internet practices in the digital age. The panel looks to be incisive from a policy perspective and keeping in mind our cspan audience, we promise a Panel Discussion that is tv