The FCC Goes Backwards

by on May 7, 2010 · 5 comments

I have an op-ed on the FCC’s broadband re-classification plan on AOL today, paired with a counterpoint commentary from Megan Tady of Free Press. My piece focuses on how the plan will lead to FCC intrusiveness in almost every area of broadband.  But “third way” labels notwithstanding, it is sheer folly to try to wrap a monopoly era regime around competitive broadband services. The FCC is about to embark on a lengthy legal battle that will cost tons of political capital while offering it very little chance of winning.

Bottom line: No matter what the information, the faster it is allowed to move and the easier it is for people, businesses and government agencies to link it together to produce value, the better it is for everyone. Until this week, even the FCC expressly understood and endorsed this approach.

Telephone service is about one-to-one connection. Broadband is about many-to-many interconnections. That’s why the FCC separated the two to begin with. Constraining broadband with rules that applied to another service in another era can’t help but end up as a policy disaster.

Find the piece here.

  • sjschultze

    Interesting piece. Your powers of speculation are remarkable.

    “Away from home and want to use your laptop to set your DVR to record the finale of “Lost”? Not if the FCC places restrictions on the way cable companies can link set-top box features to broadband Internet connections.”

    Please expand. I'd love to hear that theory.

    “Telephone service is about one-to-one connection. Broadband is about many-to-many interconnections. That’s why the FCC separated the two to begin with.”

    That is also a novel theory. I thought they separated them because they determined that broadband internet at the time inextricably intertwined an “information service” and a “telecommunications service.” I thought that this was connected to the earlier basic/enhanced distinction that emerged out of the Computer Inquiries. I thought that the framework for regulation of telecommunications/basic services was grounded in the legacy of non-discriminatory transport going back to the origins of the Communications Act, and before that English common law of duty to serve. But what do I know.

  • Ryan Radia

    According to Barbara Esbin, a communications lawyer and former FCC official, Congress intended in the 1996 Telecommunications Act for Internet services to remain largely free from regulation. See http://www.pff.org/issues-pubs/pops/2010/pop17….

    From her paper:

    “The last major overhaul of the 1934 Act, the Telecommunications Act of 1996, left this definition-based regulatory framework in place, adding many new definitions together with regulatory and de-regulatory mandates. Significantly, when Congress added the categories of “telecommunications,” “telecommunications service” and “information service” in the 1996 Act, it added no new “statutorily mandated responsibilities” concerning providers of information services. Telecommunications service providers, in contrast, were treated as common carriers, subject to the full panoply of existing Title II common carrier requirements and new “local competition” requirements.

    Nor did the 1996 Act give the FCC any explicit regulatory powers over the Internet; it added no “title” for the regulation of Internet services. To the contrary, it placed the Internet and “interactive computer services,” which include information services, outside the scope of Titles II, III, and VI. This was consistent with affirmative Congressional desire to keep the Internet unregulated. The 1996 Act explicit states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” This remains the guiding statement of Congressional policy concerning the Internet in the Communications Act.”

    Also, in an ex parte letter to Julius Genachowski, former U.S. Solicitor Seth P. Waxman stated:

    “Unlike the local competition rules that the Commission enacted on the heels of the 1996 Act and that I defended in the Supreme Court, this is not a case where the Commission would simply be responding to a major legislative innovation by Congress or engaging in a mere gap-filling exercise. Instead, the Commission would be—for the first time ever and with no action by Congress—extending a common carrier regime, designed for the monopolist telephone market of the early twentieth century, to a dynamic Internet marketplace that you recently called “the foundation for our new economy.” Such a significant and consequential policy choice should be made, if at all, by Congress.”

  • sjschultze

    Hey Ryan, good to be chatting with you… virtually this time.

    The failure in the quotes you present — and indeed this is a mistake many current commentators in this space are making — is in conflating the transport with the content. There is a very long history of distinguishing between the two with respect to government jurisdiction and policy. Indeed, this was the governing framework at the time of the 1996 Act (and until 2002 or 2005, depending on how you count it). It is *still* the governing framework. Broadband is treated differently, but that's not because of any change in the Act. Rather, it's a result of the Title I experiment.

    The notion that re-establishing authority over transport (telecommunication services) would cause cascading authority over content (information services) is unfounded speculation. People claiming so are just using “The Internet” to refer to both because they are ignorant, lazy, or deceitful. The law professors' letter on this is particularly lucid:
    http://fjallfoss.fcc.gov/ecfs/comment/view?id=6

    This EFF post gives a decent overview of why Title I classification is more frightening in this regard, in that any defensible authority based on that approach is ill-defined and prone to expansive broadening:
    http://www.eff.org/deeplinks/2010/05/net-neutra

    This Cybertelecom article on Computer II is good for history too:
    http://www.cybertelecom.org/ci/cii.htm

  • Brett Glass

    Actually, the policy statement saying that the Internet should not be regulated was part of the Communications Decency Act, not part of the original 1996 Act. But it did make the sense of Congress quite clear.

  • Brett Glass

    Actually, the policy statement saying that the Internet should not be regulated was part of the Communications Decency Act, not part of the original 1996 Act. But it did make the sense of Congress quite clear.

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