What Would Facebook Regulation Look Like? Start With the FCC

Platform giants need to meet the public interest standard, just like broadcast media. Even if antitrust enforcement moves forward, as Harvard’s Gene Kimmelman has argued, “social welfare regulations are also required.” This is why there have also been calls for the creation of a new regulatory agency focused on digital platforms. Such an agency would need to be able to address not only concerns about competition but also these broader social welfare concerns. Essentially, then, we need a robust public interest framework for platform regulation.

There is already a well-established template. The Federal Communications Commission’s regulatory mandate includes not only assuring adequate competition in the electronic media sector but also assuring that the broader public interest is being served. Within the context of this public interest standard, the FCC has pursued a variety of social welfare objectives, from reducing the digital divide to protecting children from adult content to ensuring that the public has access to a diversity of sources and viewpoints. It even has regulations in place that prohibit the broadcasting of disinformation. The FCC also has the authority to review proposed media mergers according to two criteria: 1) the implications for competition; and 2) the implications for the broader public interest. However (and this is a hugely important however), the FCC’s ability to regulate on behalf of the public interest is in many ways confined to the narrow context of broadcasting. The solution involves borrowing from broadcast regulation. Like broadcasters, many digital platforms have built their business on a public resource. In this case, the public resource is not spectrum but, rather, our user data. If we understand aggregate user data as a public resource, then just as broadcast licensees must abide by public interest obligations in exchange for the privilege of monetizing the broadcast spectrum, so too should large digital platforms abide by public interest obligations in exchange for the privilege of monetizing our data.

[Philip M. Napoli is the James R. Shepley Professor of Public Policy in the Sanford School of Public Policy at Duke University.]