Broadband & Neutrality Regulation

“The Rise and Fall of Information Empires” & Constant Growth of Regulation

by on May 23, 2010 · 1 comment

Today’s NYT piece by Brad Stone about Google (Sure, It’s Big. But Is That Bad?) offers a superb example of how to use the rhetorical question in an article headlined to suggest that you might actually be about to write a thoughtful, balanced piece—while actually writing a piece that, while thoughtful and interesting, offers little more than token resistance to your own preconceived judgments.  But perhaps I’m being unfair: Perhaps Stone’s editors removed “YES! YES! A THOUSAND TIMES, YES!” from the headline for brevity’s sake?

Anyway, despite its one-sidedness, the piece is fascinating, offering a well-researched summary of the growing cacophony of cries for regulatory intervention against Google, and also a suggestion of where they might lead in crafting a broader regulatory regime for online services beyond just Google.  In short, the crusade against Google and the crusade for net neutrality (in which Google has, IMHO unwisely been a major player) are together leading us down in intellectual slippery slope that, as Adam and I have suggested, will result in “High-Tech Mutually Assured Destruction” and the death of Real Internet Freedom.

Ironically, this push for increased government meddling—a veritable “New Deal 2.0″—is all justified by the need to “protect freedom.”  But it would hardly be the first time that this had happened. As the great defender of liberty Garet Garrett said of the New Deal 1.0 in his 1938 essay The Revolution Was:

There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom.

That theme lives on in the works of those like antitrust warrior Gary Reback, an anti-Google stalwart whose book Free the Market: Why Only Government Can Keep the Marketplace Competitive Adam savaged in his review last year. Reback argues:

Google is the “arbiter of every single thing on the Web, and it favors its properties over everyone else’s,” said Mr. Reback, sitting in a Washington cafe with the couple. “What it wants to do is control Internet traffic. Anything that undermines its ability to do that is threatening.”

Move over, ISPs! Search engines are the real threat! Somehow, I feel fairly confident in predicting that this will be among the chief implications of Tim Wu’s new book, The Master Switch: The Rise and Fall of Information Empires, to be released in November, which his publisher summarizes as follows: Continue reading →

SHARE: 1 comment

The Underlying Desperation at the FCC

by on May 21, 2010 · 8 comments

In what might just be the most audacious bureaucratic punt in recent memory, the Federal Communications Commission said yesterday that the U.S. wireless market was so complicated that it was impossible to conclude whether there was effective competition.

Even after 308 pages of examining the multiple service providers, the extensive wireless coverage areas, the scores of handsets, the diversity of services and the decline of prices, the best Chairman Julius Genachowski could say in the FCC’s 14th annual report of competitive market conditions in the wireless sector was:

This Report does not seek to reach an overly-simplistic yes-or-no conclusion about the overall level of competition in this complex and dynamic ecosystem, comprised of multiple markets. Instead, the Report complies with Congress’s mandate to assess market conditions by providing data on trends in competition and choice over time – an approach that fits best with the role of the FCC as a fact-based, data-driven agency responsible for promoting competition and protecting consumers, and fostering investment and innovation.

Translated from bureau-babble, Genachowski’s statement means, “I’m not going to let the facts get in the way of my aggressive agenda to regulate the entire Internet.”
Continue reading →

SHARE: 8 comments

The Constructive Alternative to Net Neutrality Regulation & Title II Reclassification

by on May 19, 2010 · 3 comments

Mike Wendy and I have just released a new PFF white paper, “The Constructive Alternative to Net Neutrality Regulation and Title II Reclassification Wars.” In it, we discuss the Federal Communications Commission’s (FCC) misguided effort to pigeonhole the Internet and broadband networks into the regulatory regime of a bygone era. Specifically, the agency’s recent efforts to impose “Net neutrality” regulations on broadband networks, or reclassify them as Title II services under the Communications Act, raises the likelihood of delayed or foregone investment, will discourage innovation at both the core and edge of networks, and increases the likely politicization and bureaucratization of high-technology policy more generally.

We believe there are constructive alternatives to such a destructive regulatory path.  The better alternative would be based on (1) a new legislative framework centered on an FTC-like enforcement model of ex post adjudication grounded in antitrust law; (2) increased industry self-regulation, technical collaboration, and alternative dispute resolution mechanisms; and (3) greater reliance on community policing and expert third-party oversight.

For more details, you can read our entire paper down below the fold: Continue reading →

SHARE: 3 comments

Dunstan on Genachowki’s Third Way & the Looming Broadband Tax

by on May 12, 2010 · 7 comments

My dear friend, fellow space/IT/priavcy/communications lawyer and now PFF Adjunct Fellow Jim Dunstan just published this PFF paper, which I thought I’d share with you (PDF)

______________________

The FCC’s Title II “Lite” (as a Lead Balloon!) & the Looming Broadband Tax

by James E. Dunstan, PFF Adjunct Fellow, Progress Snapshot 6.9

FCC Chairman Genachowski has set forth his vision—a “Third Way”[1]—for overcoming the D.C. Circuit’s recent decision in the Comcast case concluding that the FCC lacked jurisdiction for sanctioning Comcast for allegedly blocking subscribers using peer-to-peer software or otherwise throttling bandwidth to heavy users.[2] The Court concluded that the FCC’s “ancillary jurisdiction” under Title I of the Communications Act was insufficient authority to step in and regulate Comcast’s broadband services.  Since then, all of the Washington telecommunications intelligentsia has speculated at the FCC’s next move.  Now we have it.

Chairman Genachowski’s “Third Way” is a form of Title II “lite,” where the FCC will reverse its prior decisions dating back decades that declare the Internet and broadband connections “information services,” and instead bifurcate the Internet into two segments: the “Internet” itself, and the “connections to” the Internet.  Under the “Third Way,” the FCC would continue to treat the “Internet” itself (whatever that actually means) as an “information service” (Title I) but declare all connections to the Internet to be “telecommunications services” (Title II).[3] Armed with a ten-page memo from his General Counsel,[4] the Chairman argues that this policy reversal is on sound legal ground and will instantly reverse the “problem” caused by the Comcast decision.

Setting aside the fundamental question of who caused this “problem” (a Federal Court of Appeals concluded that it was the FCC who violated the Communications Act, not Comcast), the Chairman’s “Third Way” may turn out to be a third rail, with the real potential for destroying the Internet as we know it. Continue reading →

SHARE: 7 comments

Albert Gallatin and the First National Broadband Plan

by on May 10, 2010 · 8 comments

Over the weekend, I published an op-ed in The Des Moines Register encouraging the FCC to heed the lessons of the first national broadband plan, the one Secretary of the Treasury Albert Gallatin sent to Congress in 1808.

Gallatin was a remarkable figure in the early history of the federal government, and his accomplishments include being the longest-serving Treasury secretary (1801-1812) to date. His report on the Subject of Public Roads and Canals, completed at the request of Congress, remains one of the seminal documents in the history of American infrastructure. It is a masterpiece of dispassionate policy-making and clear-headed writing.

Alas, the document is available nowhere online, and the only in-print copy I can find is published by the aptly-named Dodo Press. This is indeed unfortunate given the renewed interest in network infrastructure as a form of national technology. The NBP published in March by the FCC, despite its nearly 400 pages and thousands of footnotes, makes no reference to Gallatin or his plan. Continue reading →

SHARE: 8 comments

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.

SHARE: 5 comments

The Problem with Title II Reclassification of the Internet in a Picture

by on May 6, 2010 · 6 comments

The FCC is toying with reclassifying broadband under Title II of the Communications Act. If the agency rolls back the regulatory clock in this fashion, it will be a huge step backwards for innovation, investment, and quality in this field. How is it that everyone suddenly has collective amnesia about the past that Title II gave us?  Doesn’t anyone remember getting their fingers pinched in black rotary dial phones of the Title II regulatory era?  I do.  Here’s what else that regulatory era gave us: Stagnant markets. Limited choice. Lackluster innovation. What else would you expect when you have price controls, rate-of-return proceedings, state PUC meddling, protected markets, etc. And despite all this revisionist history about Title II “protecting consumers,” the past it gave us was viciously anti-consumer and pro-regulated entity.

Is that the future you want for the Internet and the digital economy?  That’s what’s at stake in this fight.  Just say NO to a Rotary Dial Internet!

SHARE: 6 comments

TechCrunch TV on “Net Neutrality”

by on May 6, 2010 · 11 comments

I appeared this afternoon on the inaugural edition of TechCrunch TV to talk about–what else?–Net Neutrality.

Multiple media sources are now reporting that the FCC, contrary to reports from earlier this week, has decided to go ahead with an effort to change the classification of broadband Internet service from a Title I “information service” to a Title II “telecommunications service,” if only to salvage the proposed rulemaking on the open and transparent Internet.  (See stories on The Wall Street Journal and The Washington Post as well as Ars Technica.)

Those of us who aren’t on the FCC’s official leak list will have to wait with the rest of the rabble to get a look at just how the FCC proposes to effect this radical change in communications law.  Will it apply to all broadband Internet–including cable, fiber, DSL, satellite, wireless and broadband over power lines?  Will the FCC propose to regulate only as much as needed to get the jurisdiction the D.C. Circuit says it doesn’t have under Title I to implement the NPRM, or will they throw in some additional provisions to achieve other goals–such as the reform of the Universal Service Fund?  Will state and local regulators get to share in the fun of telling ISPs how best to run their business?

Continue reading →

SHARE: 11 comments

event: May 7th – What Should the Next Communications Act Look Like?

by on April 27, 2010 · 0 comments

On Friday, May 7th from 9:00 a.m. – 10:45 a.m. at the National Press Club, The Progress & Freedom Foundation will hold a panel discussion entitled, “What Should the Next Communications Act Look Like?”  This event will consider the implications of the recent Comcast v. FCC court decision, the FCC’s pending “Net Neutrality” Notice of Proposed Rulemaking, as well as other developments which have lead many experts, officials, policymakers and a diverse array of companies to call on Congress to update the Telecommunications Act of 1996. Leading industry veterans will make their case for change, and explain how their proposals can be implemented. Our expect panel will include:

  • Thomas J. Tauke, Executive Vice President – Public Affairs, Policy and Communications, Verizon Communications
  • Peter Pitsch, Associate General Counsel and Executive Director of Communications Policy, Intel
  • Walter McCormick, President & CEO, United States Telecom Association
  • Ray Gifford, Partner, Wilkinson, Barker, Knauer, LLP
  • Michael Calabrese, Vice President, New America Foundation
  • Barbara Esbin, Senior Fellow, The Progress & Freedom Foundation

Please RSVP here is you plan to join us on May 7th for this event. Again, it will take place from 9:00 a.m. – 10:45 a.m. at the National Press Club (Holeman Lounge, 13th Floor, 529 14th Street NW).  Hope to see you there.

SHARE: 0 comments

Report: Poorest States Rank Highest in Broadband Competition

by on April 27, 2010 · 2 comments

Low-income states have a much higher degree of facilities-based competition than wealthier ones, according to a new report from ID Insight, a consulting firm that provides authentication, verification and fraud prevention solutions to financial services companies, credit issuers, retailers, online merchants and broadband providers.

The results, which surprised even its two authors, Adam Eliot and municipal broadband advocate Craig Settles, turns on its head the notions that only consumers wealthy markets are seeing the benefits of broadband competition and that Internet service providers have abandoned low-income rural areas as too costly to serve. One policy consequence already, the report says, is that most of the $7.2 billion broadband stimulus awarded so far has been directed to states and regions where there is robust competition and no shortage of service.

Continue reading →

SHARE: 2 comments

← Previous Entries

Next Entries →