Broadband & Neutrality Regulation

The FCC released a proposed Order today that would create an Office of Economics and Analytics. Last April, Chairman Pai proposed this data-centric office. There are about a dozen bureaus and offices within the FCC and this proposed change in the FCC’s organizational structure would consolidate a few offices and many FCC economists and experts into a single office.

This is welcome news. Several years ago when I was in law school, I was a legal clerk for the FCC Wireless Bureau and for the FCC Office of General Counsel. During that ten-month stint, I was surprised at the number of economists, who were all excellent, at the FCC. I assisted several of them closely (and helped organize what one FCC official dubbed, unofficially, “The Economists’ Cage Match” for outside experts sparring over the competitive effects of the proposed AT&T-T-Mobile merger). However, my impression even during my limited time at the FCC was well-stated by Chairman Pai in April:

[E]conomists are not systematically incorporated into policy work at the FCC. Instead, their expertise is typically applied in an ad hoc fashion, often late in the process. There is no consistent approach to their use.

And since the economists are sprinkled about the agency, their work is often “siloed” within their respective bureau. Economics as an afterthought in telecom is not good for the development of US tech industries, nor for consumers.

As Geoffrey Manne and Allen Gibby said recently, “the future of telecom regulation is antitrust,” and the creation of the OEA is a good step in line with global trends. Many nations–like the Netherlands, Denmark, Spain, Japan, South Korea, and New Zealand–are restructuring legacy telecom regulators. The days of public and private telecom monopolies and discrete, separate communications, computer, and media industries (thus bureaus) is past. Convergence, driven by IP networks and deregulation, has created these trends and resulted in sometimes dramatic restructuring of agencies.

In Denmark, for instance, as Roslyn Layton and Joe Kane have written, national parties and regulators took inspiration from the deregulatory plans of the Clinton FCC. The Social Democrats, the Radical Left, the Left, the Conservative People’s Party, the Socialist People’s Party, and the Center Democrats agreed in 1999:

The 1990s were focused on breaking down old monopoly; now it is important to make the frameworks for telecom, IT, radio, TV meld together—convergence. We believe that new technologies will create competition.

It is important to ensure that regulation does not create a barrier for the possibility of new converged products; for example, telecom operators should be able to offer content if they so choose. It is also important to ensure digital signature capability, digital payment, consumer protection, and digital rights. Regulation must be technologically neutral, and technology choices are to be handled by the market. The goal is to move away from sector-specific regulation toward competition-oriented regulation. We would prefer to handle telecom with competition laws, but some special regulation may be needed in certain cases—for example, regulation for access to copper and universal service.

This agreement was followed up by the quiet shuttering of NITA, the Danish telecom agency, in 2011.

Bringing economic rigor to the FCC’s notoriously vague “public interest” standard seemed to be occurring (slowly) during the Clinton and Bush administrations. However, during the Obama years, this progress was de-railed, largely by the net neutrality silliness, which not only distracted US regulators from actual problems like rural broadband expansion but also reinvigorated the media-access movement, whose followers believe the FCC should have a major role in shaping US culture, media, and technologies.

Fortunately, those days are in the rearview mirror. The proposed creation of the OEA represents another pivot toward the likely future of US telecom regulation: a focus on consumer welfare, competition, and data-driven policy.

Internet regulation advocates are trying to turn a recent FCC Notice of Inquiry about the state of US telecommunications services into a controversy. Twelve US Senators have accused the FCC of wanting to “redefin[e] broadband” in order to “abandon further efforts to connect Americans.”

Considering Chairman Pai and the Commission are already considering actions to accelerate the deployment of broadband, with new proceedings and the formation of the Broadband Deployment Advisory Committee, the allegation that the current NOI is an excuse for inaction is perplexing.

The true “controversy” is much more mundane–reasonable people disagree about what congressional neologisms like “advanced telecommunications capability” mean. The FCC must interpret and apply the indeterminate language of Section 706 of the Telecommunications Act, which requires the FCC about whether to determine “whether advanced telecommunications capability is being deployed in a reasonable and timely fashion.” If the answer is negative, the agency must “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.” The inquiry is reported in an annual “Broadband Progress Report.” Much of the “scandal” of this proceeding is confusion about what “broadband” means.

What is broadband?

First: what qualifies as “broadband” download speed? It depends.

The OECD says anything above 256 kbps.

ITU standards set it at above 1.5 Mbps (or is 2.0 Mbps?).

In the US, broadband is generally defined as a higher speed. The USDA’s Rural Utilities Service defines it as 4.0 Mbps.

The FCC’s 2015 Broadband Progress Report found, as Obama FCC officials put it, that “the FCC’s definition of broadband” is now 25 Mbps. This is why advocates insist “broadband access” includes only wireline services above 25 Mbps.

But in the same month, the Obama FCC determined in the Open Internet Order that anything above dialup speed–56 kbps–is “broadband Internet access service.”

So, according to regulation advocates, 1.5 Mbps DSL service isn’t “broadband access” service but it is “broadband Internet access service.” Likewise a 30 Mbps 4G LTE connection isn’t a “broadband access” service but it is “broadband Internet access service.”

In other words, the word games about “broadband” are not coming from the Trump FCC. There is no consistency for what “broadband” means because prior FCCs kept changing the definition, and even use the term differently in different proceedings. As the Obama FCC said in 2009, “In previous reports to Congress, the Commission used the terms ‘broadband,’ ‘advanced telecommunications capability,’ and ‘advanced services’ interchangeably.”

Instead, what is going on is that the Trump FCC is trying to apply Section 706 to the current broadband market. The main questions are, what is advanced telecommunications capability, and is it “being deployed in a reasonable and timely fashion”?

Is mobile broadband an “advanced telecommunications capability”?

Previous FCCs declined to adopt a speed benchmark for when wireless service satisfies the “advanced telecommunications capability” definition. The so-called controversy is because the latest NOI revisits this omission in light of consumer trends. The NOI straightforwardly asks whether mobile broadband above 10 Mbps satisfies the statutory definition of “advanced telecommunications capability.”

For that, the FCC must consult the statute. Such a capability, the statute says, is technology-neutral (i.e. includes wireless and “fixed” connections) and “enables users to originate and receive high-quality voice, data, graphics, and video telecommunications.”

Historically, since the statute doesn’t provide much precision, the FCC has examined subscription rates of various broadband speeds and services. From 2010 to 2015, the Obama FCCs defined advanced telecommunications capability as a fixed connection of 4 Mbps. In 2015, as mentioned, that benchmark was raised 25 Mbps.

Regulation advocates fear that if the FCC looks at subscription rates, the agency might find that mobile broadband above 10 Mbps is an advanced telecommunications capability. This finding, they feel, would undermine the argument that the US broadband market needs intense regulation. According to recent Pew surveys, 12% of adults–about 28 million people–are “wireless only” and don’t have a wireline subscription. Those numbers certainly raise the possibility that mobile broadband is an advanced telecommunications capability.

Let’s look at the three fixed broadband technologies that “pass” the vast majority of households–cable modem, DSL, and satellite–and narrow the data to connections 10 Mbps or above.*

Home broadband connections (10 Mbps+)
Cable modem – 54.4 million
DSL – 11.8 million
Satellite – 1.4 million

It’s hard to know for sure since Pew measures adult individuals and the FCC measures households, but it’s possible more people have 4G LTE as home broadband (about 28 million adults and their families) than have 10 Mbps+ DSL as home broadband (11.8 million households).

Subscription rates aren’t the end of the inquiry, but the fact that millions of households are going mobile-only rather than DSL or cable modem is suggestive evidence that mobile broadband offers an advanced telecommunications capability. (Considering T-Mobile is now providing 50 GB of data per line per month, mobile-only household growth will likely accelerate.)

Are high-speed services “being deployed in a reasonable and timely fashion”?

The second inquiry is whether these advanced telecommunications capabilities “are being deployed in a reasonable and timely fashion.” Again, the statute doesn’t give much guidance but consumer adoption of high-speed wireline and wireless broadband has been impressive.

So few people had 25 Mbps for so long that the FCC didn’t record it in its Internet Access Services reports until 2011. At the end of 2011, 6.3 million households subscribed to 25 Mbps. Less than five years later, in June 2016, over 56 million households subscribed. In the last year alone, fixed providers extended 25 Mbps or greater speeds to 21 million households.

The FCC is not completely without guidance on this question. As part of the 2008 Broadband Data Services Improvement Act, Congress instructed the FCC to use international comparisons in its Section 706 Report. International comparisons also suggest that the US is deploying advanced telecommunications capability in a timely manner. For instance, according to the OECD the US has 23.4 fiber and cable modem connections per 100 inhabitants, which far exceeds the OECD average, 16.2 per 100 inhabitants.**

Anyways, the sky is not falling because the FCC is asking about mobile broadband subscription rates. More can be done to accelerate broadband–particularly if the government frees up more spectrum and local governments improve their permitting processes–but the Section 706 inquiry offers little that is controversial or new.

 

*Fiber and fixed wireless connections, 9.6 million and 0.3 million subscribers, respectively, are also noteworthy but these 10 Mbps+ technologies only cover certain areas of the country.

**America’s high rank in the OECD is similar if DSL is included, but the quality of DSL varies widely and often doesn’t provide 10 Mbps or 25 Mbps speeds.

It’s becoming clearer why, for six years out of eight, Obama’s appointed FCC chairmen resisted regulating the Internet with Title II of the 1934 Communications Act. Chairman Wheeler famously did not want to go that legal route. It was only after President Obama and the White House called on the FCC in late 2014 to use Title II that Chairman Wheeler relented. If anything, the hastily-drafted 2015 Open Internet rules provide a new incentive to ISPs to curate the Internet in ways they didn’t want to before. 

The 2016 court decision upholding the rules was a Pyrrhic victory for the net neutrality movement. In short, the decision revealed that the 2015 Open Internet Order provides no meaningful net neutrality protections–it allows ISPs to block and throttle content. As the judges who upheld the Order said, “The Order…specifies that an ISP remains ‘free to offer ‘edited’ services’ without becoming subject to the rule’s requirements.” 

The 2014 White House pressure didn’t occur in a vacuum. It occurred immediately after Democratic losses in the November 2014 midterms. As Public Knowledge president Gene Kimmelman tells it, President Obama needed to give progressives “a clean victory for us to show that we are standing up for our principles.” The slapdash legal finessing that followed was presaged by President Obama’s November 2014 national address urging Title II classification of the Internet, which cites the wrong communications law on the Obama White House website to this day.

The FCC staff did their best with what they were given but the resulting Order was aimed at political symbolism and acquiring jurisdiction to regulate the Internet, not meaningful “net neutrality” protections. As internal FCC emails produced in a Senate majority report show, Wheeler’s reversal that week caught the non-partisan career FCC staff off guard. Literally overnight FCC staff had to scrap the “hybrid” (non-Title II) order they’d been carefully drafting for weeks and scrape together a legal justification for using Title II. This meant calling in advocates to enhance the record and dubious citations to the economics literature. Former FCC chief economist, Prof. Michael Katz, whose work was cited in the Order, later stated to Forbes that he suspected the “FCC cited my papers as an inside joke, because they know how much I think net neutrality is a bad idea.” 

Applying 1934 telegraph and telephone laws to the Internet was always going to have unintended consequences, but the politically-driven Order increasingly looks like an own-goal, even to supporters. Former FCC chief technologist, Jon Peha, who supports Title II classification of ISPs almost immediately raised the alarm that the Order offered “massive loopholes” to ISPs that could make the rules irrelevant. This was made clear when the FCC attorney defending the Order in court acknowledged that ISPs are free to block and filter content and escape the Open Internet regulations and Title II. These concessions from the FCC surprised even AT&T VP Hank Hultquist:

Wow. ISPs are not only free to engage in content-based blocking, they can even create the long-dreaded fast and slow lanes so long as they make their intentions sufficiently clear to customers.

So the Open Internet Order not only permits the net neutrality “nightmare scenario,” it provides an incentive to ISPs to curate the Internet. Despite the activist PR surrounding the Order, so-called “fast lanes”–like carrier-provided VoIP, VoLTE, and IPTV–have existed for years and the FCC rules allow them.  The Order permits ISP blocking, throttling, and “fast lanes”–what remains of “net neutrality”?

Prof. Susan Crawford presciently warned in 2005: 

I have lost faith in our ability to write about code in words, and I’m confident that any attempt at writing down network neutrality will be so qualified, gutted, eviscerated, and emptied that it will end up being worse than useless.

Aside from some religious ISPs, ISPs don’t want to filter Internet content. But the Obama FCC, via the “net neutrality” rules, gives them a new incentive: the Order deregulates ISPs that filter. ISPs will fight the rules because they want to continue to offer their conventional Internet service without submitting to the Title II baggage. This is why ISPs favor scrapping the Order–not only is it the FCC’s first claim to regulate Internet access, if the rules are not repealed, ISPs will be compelled to make difficult decisions about their business models and technologies in the future.

There is reporting suggesting that the Trump FCC may move to eliminate the FCC’s complex Title II regulations for the Internet and restore the FTC’s ability to police anticompetitve and deceptive practices online. This is obviously welcome news. These reports also suggest that FCC Chairman Pai and the FTC will require ISPs add open Internet principles to their terms of service, that is, no unreasonable blocking or throttling of content and no paid priority. These principles have always been imprecise because federal law allows ISPs to block objectionable content if they wish (like pornography or violent websites) and because ISPs have a First Amendment right to curate their services.

Whatever the exact wording, there shouldn’t be a per se ban of paid priority. Whatever policy develops should limit anticompetitive paid priority, not all paid priority. Paid prioritization is simply a form of consideration payment, which is economists’ term for when upstream producers pay downstream retailers or distributors for special treatment. There’s economics literature on consideration payments and it’s an accepted business practice in many other industries. Further, consideration payments often benefit small providers and niche customers. Some small and large companies with interactive IP services might be willing to pay for end-to-end service reliability.

The Open Internet Order’s paid priority ban has always been short sighted because it attempts to preserve the Internet as it existed circa 2002. It resembles the FCC’s unfounded insistence for decades that subscription TV (ie, how the vast majority of Americans consume TV today) was against “the public interest.” Like the defunct subscription TV ban, the paid priority ban is an economics-free policy that will hinder new services. 

Despite what late-night talk show hosts might say, “fast lanes” on the Internet are here and will continue. “Fast lanes” have always been permitted because, as Obama’s US CTO Aneesh Chopra noted, some emerging IP services need special treatment. Priority transmission was built into Internet protocols years ago and the OIO doesn’t ban data prioritization; it bans BIAS providers from charging “edge providers” a fee for priority.

The notion that there’s a level playing field online needing preservation is a fantasy. Non-real-time services like Netflix streaming, YouTube, Facebook pages, and major websites can mostly be “cached” on servers scattered around the US. Major web companies have their own form of paid prioritization–they spend millions annually, including large payments to ISPs, on transit agreements, CDNs, and interconnection in order to avoid congested Internet links.

The problem with a blanket paid priority ban is that it biases the evolution of the Internet in favor of these cache-able services and against real-time or interactive services like teleconferencing, live TV, and gaming. Caching doesn’t work for these services because there’s nothing to cache beforehand. 

When would paid prioritization make sense? Most likely a specialized service for dedicated users that requires end-to-end reliability. 

I’ll use a plausible example to illustrate the benefits of consideration payments online–a telepresence service for deaf people. As Martin Geddes described, a decade ago the government in Wales developed such a service. The service architects discovered that a well-functioning service had quality characteristics not supplied by ISPs. ISPs and video chat apps like Skype optimize their networks, video codecs, and services for non-deaf people (ie, most customers) and prioritize consistent audio quality over video quality. While that’s useful for most people, deaf people need basically the opposite optimization because they need to perceive subtle hand and finger motions. The typical app that prioritizes audio, not video, doesn’t work for them.

But high-def real-time video quality requires upstream and downstream capacity reservation and end-to-end reliability. This is not cheap to provide. An ISP, in this illustration, has three options–charge the telepresence provider, charge deaf customers a premium, or spread the costs across all customers. The paid priority ban means ISPs can only charge customers for increased costs. This paid priority ban unnecessarily limits the potential for such services since there may be companies or nonprofits willing to subsidize such a service.

It’s a specialized example but illustrates the idiosyncratic technical requirements needed for many real-time services. In fact, real-time services are the next big challenge in the Internet’s evolution. As streaming media expert Dan Rayburn noted, “traditional one-way live streaming is being disrupted by the demand for interactive engagement.”  Large and small edge companies are increasingly looking for low-latency video solutions. Today, a typical “live” event is broadcast online to viewers with a 15- to 45-second delay. This latency limits or kills the potential for interactive online streaming services like online talk shows, pet cams, online auctions, videogaming, and online classrooms.

If the FTC takes back oversight of ISPs and the Internet it should, as with any industry, permit any business practice that complies with competition law and consumer protection law. The agency should disregard the unfounded belief that consideration payments online (“paid priority”) are always harmful.

Federal Communications Commission (FCC) Chairman Ajit Pai today announced plans to expand the role of economic analysis at the FCC in a speech at the Hudson Institute. This is an eminently sensible idea that other regulatory agencies (both independent and executive branch) could learn from.

Pai first made the case that when the FCC listened to its economists in the past, it unlocked billions of dollars of value for consumers. The most prominent example was the switch from hearings to auctions in order to allocate spectrum licenses. He perceptively noted that the biggest effect of auctions was the massive improvement in consumer welfare, not just the more than $100 billion raised for the Treasury. Other examples of the FCC using the best ideas of its economists include:

  • Use of reverse auctions to allocate universal service funds to reduce costs.
  • Incentive auctions that reward broadcasters for transferring licenses to other uses – an idea initially proposed in a 2002 working paper by Evan Kwerel and John Williams at the FCC.
  • The move from rate of return to price cap regulation for long distance carriers.

More recently, Pai argued, the FCC has failed to use economics effectively. He identified four key problems:

  1. Economics is not systematically employed in policy decisions and often employed late in the process. The FCC has no guiding principles for conduct and use of economic analysis.
  2. Economists work in silos. They are divided up among bureaus. Economists should be able to work together on a wide variety of issues, as they do in the Federal Trade Commission’s Bureau of Economics, the Department of Justice Antitrust Division’s economic analysis unit, and the Securities and Exchange Commission’s Division of Economic and Risk Analysis.
  3. Benefit-cost analysis is not conducted well or often, and the FCC does not take Regulatory Flexibility Act analysis (which assesses effects of regulations on small entities) seriously. The FCC should use Office of Management and Budget guidance as its guide to doing good analysis, but OMB’s 2016 draft report on the benefits and costs of federal regulations shows that the FCC has estimated neither benefits nor costs of any of its major regulations issued in the past 10 years. Yet executive orders from multiple administrations demonstrate that “Serious cost-benefit analysis is a bipartisan tradition.”
  4. Poor use of data. The FCC probably collects a lot of data that’s unnecessary, at a paperwork cost of $800 million per year, not including opportunity costs of the private sector. But even useful data are not utilized well. For example, a few years ago the FCC stopped trying to determine whether the wireless market is effectively competitive even though it collects lots of data on the wireless market.

To remedy these problems, Pai announced an initiative to establish an Office of Economics and Data that would house the FCC’s economists and data analysts. An internal working group will be established to collect input within the FCC and from the public. He hopes to have the new office up and running by the end of the year. The purpose of this change is to give economists early input into the rulemaking process, better manage the FCC’s data resources, and conduct strategic research to help find solutions to “the next set of difficult issues.”

Can this initiative significantly improve the quality and use of economic analysis at the FCC?

There’s evidence that independent regulatory agencies are capable of making some decent improvements in their economic analysis when they are sufficiently motivated to do so. For example, the Securities and Exchange Commission’s authorizing statue contains language that requires benefit-cost analysis of regulations when the commission seeks to determine whether they are in the public interest. Between 2005 and 2011, the SEC lost several major court cases due to inadequate economic analysis.

In 2012, the commission’s general counsel and chief economist issued new economic analysis guidance that pledged to assess regulations according to the principal criteria identified in executive orders, guidance from the Office of Management and Budget, and independent research. In a recent study, I found that the economic analysis accompanying a sample of major SEC regulations issued after this guidance was measurably better than the analysis accompanying regulations issued prior to the new guidance. The SEC improved on all five aspects of economic analysis it identified as critical: assessment of the need for the regulation, assessment of the baseline outcomes that will likely occur in the absence of new regulation, identification of alternatives, and assessment of the benefits and costs of alternatives.

Unlike the SEC, the FCC faces no statutory benefit-cost analysis requirement for its regulations. Unlike the executive branch agencies, the FCC is under no executive order requiring economic analysis of regulations. Unlike the Federal Trade Commission in the early 1980s, the FCC faces little congressional pressure for abolition.

But Congress is considering legislation that would require all regulatory agencies to conduct economic analysis of major regulations and subject that analysis to limited judicial review. Proponents of executive branch regulatory review have always contended that the president has legal authority to extend the executive orders on regulatory impact analysis to cover independent agencies, and perhaps President Trump is audacious enough to try this. Thus, it appears Chairman Pai is trying to get the FCC out ahead of the curve.

Congress passed joint resolutions to rescind FCC online privacy regulations this week, which President Trump is expected to sign. Ignore the hyperbole. Lawmakers are simply attempting to maintain the state of Internet privacy law that’s existed for 20-plus years.

Since the Internet was commercialized in the 1990s, the Federal Trade Commission has used its authority to prevent “unfair or deceptive acts or practices” to prevent privacy abuses by Web companies and ISPs. In 2015, that changed. The Obama FCC classified “broadband Internet access service” as a common carrier service, thereby blocking the FTC’s authority to determine which ISP privacy policies and practices are acceptable.

Privacy advocates failed to convince the Obama FTC that de-identified browsing history is “sensitive” data. (The FTC has treated SSNs, medical information, financial information, precise location, etc. as “sensitive” for years and companies must handle these differently.) The FCC was the next best thing and in 2016 they convinced the FCC to say that browsing history is “sensitive data,” but it’s sensitive only when ISPs have it.

This has contributed to a regulatory mess for consumers and tech companies. Technological convergence is here. Regulatory convergence is not.

Consider a plausible scenario. I start watching an NFL game via Twitter on my tablet on Starbucks’ wifi. I head home at halftime and watch the game from my cable TV provider, Comcast. Then I climb into bed and watch overtime on my smartphone via NFL Mobile from Verizon.

One TV program, three privacy regimes. FTC guidelines cover me at Starbucks. Privacy rules from Title VI of the Communications Act cover my TV viewing. The brand-new FCC broadband privacy rules cover my NFL Mobile viewing and late-night browsing.

Other absurdities result from the FCC’s decision to regulate Internet privacy. For instance, if you bought your child a mobile plan with web filtering, she’s protected by FTC privacy standards, while your mobile plan is governed by FCC rules. Google Fiber customers are covered by FTC policies when they use Google Search but FCC policies when they use Yelp.

This Swiss-cheese approach to classifying services means that regulatory obligations fall haphazardly across services and technologies. It’s confusing to consumers and to companies, who need to write privacy policies based on artificial FCC distinctions that consumers disregard.

The House and Senate bills rescind the FCC “notice and choice” rules, which is the first step to restoring FTC authority. (In the meantime, the FCC will implement FTC-like policies.) 

Considering that these notice and choice rules have not even gone into effect, the rehearsed outrage from advocates demands explanation: The theatrics this week are not really about congressional repeal of the (inoperative) privacy rules. Two years ago the FCC decided to regulate the Internet in order to shape Internet services and content. The leading advocates are outraged because FCC control of the Internet is slipping away. Hopefully Congress and the FCC will eliminate the rest of the Title II baggage this year.

US telecommunications laws are in need of updates. US law states that “the Internet and other interactive computer services” should be “unfettered by Federal or State regulation,” but regulators are increasingly imposing old laws and regulations onto new media and Internet services. Further, Federal Communications Commission actions often duplicate or displace general competition laws. Absent congressional action, old telecom laws will continue to delay and obstruct new services. A new Mercatus paper by Roslyn Layton and Joe Kane shows how governments can modernize telecom agencies and laws.

Legacy Laws

US telecom laws are codified in Title 47 of the US Code and enforced mostly by the FCC. That the first eight sections of US telecommunications law are devoted to the telegraph, the killer app of 1850, illustrates congressional inaction towards obsolete regulations.

In the last decade, therefore, several media, Internet, and telecom companies inadvertently stumbled into Communications Act quagmires. An Internet streaming company, for instance, was bankrupted for upending the TV status quo established by the FCC in the 1960s; FCC precedents mean broadcasters can be credibly threatened with license revocation for airing a documentary critical of a presidential candidate; and the thousands of Internet service providers across the US are subjected to laws designed to constrain the 1930s AT&T long-distance phone monopoly.

US telecom and tech laws, in other words, are a shining example of American “kludgeocracy”–a regime of prescriptive and dated laws whose complexity benefits special interests and harms innovators. These anti-consumer results led progressive Harvard professor Lawrence Lessig to conclude in 2008 that “it’s time to demolish the FCC.” While Lessig’s proposal goes too far, Congress should listen to the voices on the right and left urging them to sweep away the regulations of the past and rationalize telecom law for the 21st century.

Modern Telecom Policy in Denmark

An interesting new Mercatus working paper explains how Denmark took up that challenge. The paper, “Alternative Approaches to Broadband Policy: Lessons on Deregulation from Denmark,” is by Denmark-based scholar Roslyn Layton, who served on President Trump’s transition team for telecom policy, and Joe Kane, a masters student in the GMU econ department. 

The “Nordic model” is often caricatured by American conservatives (and progressives like Bernie Sanders) as socialist control of industry. But as AEI’s James Pethokoukis and others point out, it’s time both sides updated their 1970s talking points. “[W]hen it comes to regulatory efficiency and business freedom,” Tyler Cowen recently noted, “Denmark has a considerably higher [Heritage Foundation] score than does the U.S.”

Layton and Kane explore Denmark’s relatively free-market telecom policies. They explain how Denmark modernized its telecom laws over time as technology and competition evolved. Critically, the center-left government eliminated Denmark’s telecom regulator in 2011 in light of the “convergence” of services to the Internet. Scholars noted,

Nobody seemed to care much—except for the staff who needed to move to other authorities and a few people especially interested in IT and telecom regulation.

Even-handed, light telecom regulation performs pretty well. Denmark, along with South Korea, leads the world in terms of broadband access. The country also has a modest universal service program that depends primarily on the market. Further, similar to other Nordic countries, Denmark permitted a voluntary forum, including consumer groups, ISPs, and Google, to determine best practices and resolve “net neutrality” controversies.

Contrast Denmark’s tech-neutral, consumer-focused approach with recent proceedings in the United States. One of the Obama FCC’s major projects was attempting to regulate how TV streaming apps functioned–despite the fact that TV has never been more abundant and competitive. Countless hours of staff time and industry time were wasted (Trump’s election killed the effort) because advocates saw the opportunity to regulate the streaming market with a law intended to help Circuit City (RIP) sell a few more devices in 1996. The biggest waste of government resources has been the “net neutrality” fight, which stems from prior FCC attempts to apply 1930s telecom laws to 1960s computer systems. Old rules haphazardly imposed on new technologies creates a compliance mindset in our tech and telecom industries. Worse, these unwinnable fights over legal minutiae prevent FCC staff from working on issues where they can help consumers. 

Americans deserve better telecom laws but the inscrutability of FCC actions means consumers don’t know what to ask for. Layton and Kane illuminate that alternative frameworks are available. They highlight Denmark’s political and cultural differences from the US. Nevertheless, Denmark’s telecom reforms and pro-consumer policies deserve study and emulation. The Danes have shown how tech-neutral, consumer-focused policies not only can expand broadband access, they reduce government duplication and overreach.

If Congress and the President wanted to prevent intrusive regulation of the Internet, how would they do it? They know that silence on the issue wouldn’t protect Internet services. As Congress learned in the 1960s and 1970s with cable TV, congressional silence, to the FCC, looks like permission to enact a far-reaching regulatory regime.

In the 1990s, Congress knew the FCC would be tempted to regulate the Internet and Internet services and that silence would be seen as an invitation to regulate the Internet. Congress and President Clinton therefore passed a 1996 law, Section 230 of the Communications Decency Act, which stated:

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.

But this statement raised the possibility that the FCC would regulate Internet access providers and would claim (as FCC defenders do today) they were not regulating “the Internet,” only access providers. To preempt such sophistry, Congress added that the “interactive computer services” shielded from regulation include:

specifically a service or system that provides access to the Internet….

Congress proved prescient. For over a decade, as the FCC’s traditional areas of regulation waned in importance, advocates and FCC officials have sought to regulate Internet access providers and the Internet. After two failed attempts to regulate providers and enforce net neutrality norms, the FCC decided to regulate Internet access providers with Title II, the same provisions regulating telephone and telegraph providers. Section 230 featured prominently in the dissents of commissioners Pai and O’Rielly who both noted that the Open Internet Order was a simple rejection of the plain words of Congress. Nevertheless, two judges on DC Circuit Court of Appeals blessed those regulations and the Open Internet Order in 2016.

If “unfettered from Federal regulation” means anything, doesn’t it mean that the FCC cannot use Title II, its most stringent regulatory regime, to regulate Internet access providers? Is there any combination of words Congress could draft that would protect Internet access providers and Internet services from Title II?

There is a pending appeal challenging the Open Internet Order before the DC Circuit and after that is appeal to the Supreme Court. The Supreme Court, in particular, might be receptive to a common-sense argument that “unfettered from Federal regulation” is hazy around the edges but it cannot mean regulation of ISPs’ content, services, protocols, network topology, and business models.

I understand the sentiment that a net neutrality compromise is urgently needed to save the Internet from Title II. But until the Open Internet Order appeals have concluded, I think it’s premature to compromise and grant the FCC permanent authority to regulate the Internet with vague standards (e.g., no one knows what “reasonable throttling” means). A successful appeal could mean a third and final court loss for net neutrality purists, thereby restoring Section 230’s free-market protections for the Internet. Until the Supreme Court denies cert or agrees with the FCC that up is down, black is white, and agencies can ignore clear statutes, I’m not persuaded that Congress should nullify its own deregulatory language of Section 230 with a net neutrality compromise.

Title II allows the FCC to determine what content and media Internet access providers must transmit on their own private networks, so the First Amendment has constantly dogged the FCC’s “net neutrality” proceedings. If the Supreme Court agrees to take up an appeal from the DC Circuit Court of Appeals, which rejected a First Amendment challenge this summer, it will likely be because of Title II’s First Amendment deficiencies.

Title II has always been about handicapping ISPs qua speakers and preventing ISPs from offering curated Internet content. As former FCC commissioner Copps said, absent the Title II rules, “a big cable company could block access to an investigative report about its less-than-stellar customer service.” Tim Wu told members of Congress that net neutrality was intended to prevent ISPs from favoring, say, particular news sources or sports teams.

But just as a cable company chooses to offer some channels and not others, and a search engine chooses to promote some pages and not others, choosing to offer a curated Internet to, say, children, religious families, or sports fans involves editorial decisions. As communications scholar Stuart Benjamin said about Title II’s problem, under current precedent, ISPs “can say they want to engage in substantive editing, and that’s enough for First Amendment purposes.”

Title II – Bringing Broadcast Regulation to the Internet

Title II regulation of the Internet is frequently compared to the Fairness Doctrine, which activists used for decades to drive conservatives out of broadcast radio and TV. As a pro-net neutrality media professor explained in The Atlantic last year, the motivation for the Fairness Doctrine and Title II Internet regulation is the same: to “rescue a potentially democratic medium from commercial capture.” This is why there is almost perfect overlap between the organizations and advocates who support the Fairness Doctrine and those who lobbied for Title II regulation of the Internet. Continue reading →

Yesterday, Hillary Clinton’s campaign released a tech and innovation agenda. The document covers many tech subjects, including cybersecurity, copyright, and and tech workforce investments, but I’ll narrow my comments to the areas I have the most expertise in: broadband infrastructure and Internet regulation. These roughly match up, respectively, to the second and fourth sections of the five-section document.

On the whole, the broadband infrastructure and Internet regulation sections list good, useful priorities. The biggest exception is Hillary’s strong endorsement of the Title II rules for the Internet, which, as I explained in the National Review last week, is a heavy-handed regulatory regime that is ripe for abuse and will be enforced by a politicized agency.

Her tech agenda doesn’t mention a Communications Act rewrite but I’d argue it’s implied in her proposed reforms. Further, her statements last year at an event suggest she supports significant telecom reforms. In early 2015, Clinton spoke to tech journalist Kara Swisher (HT Doug Brake) and it was pretty clear Clinton viewed Title II as an imperfect and likely temporary effort to enforce neutrality norms. In fact, Clinton said she prefers “a modern, 21st-century telecom technology act” to replace Title II and the rest of the 1934 Communications Act. Continue reading →