I recently wrote an op-ed for the American Legislative Exchange Council’s Inside ALEC publication. It’s decidedly non-technical, as most correspondance with a majority in the legislative branch must be. In my dealings with those in state government positions, it seems that only in the last few months have many of them become aware of the FCC’s Net Neutrality proposals — or even the issue itself. I don’t blame them. State legislators are often more concerned with local issues such as solving their budget deficits or finding funding for critical government operations.
But it’s important that they also keep an eye on what’s happening in “the other Washington,” (as we Washington state-ers like to call it) as the policies from Congress, the Administration and federal agencies trickle down to affect each and every one of us.
The text of the op-ed is after the break.
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There’s been some considerable comment over my February 11 post that, had the the FCC’s proposed Network Neutrality regulation been in force a few years ago, products like the Apple iPhone and Amazon Kindle would not have been possible.
In fact, the otherwise levelheaded Mike Masnick at TechDirt called my assertion “ridiculous.”
I beg to differ.
The premise behind mandated network neutrality is the concern that ISPs like AT&T, Verizon and Comcast are in a position to exploit their control of the “last mile” broadband connections to unfairly influence the market success or failure of a third-party Internet-related product or application.
Former vice-president Al Gore summed up the position best in a Reason TV video posted here the other day: “I just think that’s it’s unacceptable to have the folks that control the pipes get into anything that smacks of controlling the content or favoring their content over other content. Whoa!”
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Today I am attending, and speaking at, a terrific event in downtown DC sponsored by the Catholic University Law School on“Implementing the National Broadband Plan: Perspectives from Government, Industry, and Consumers.” It’s being held at the offices of the law firm of Wiley Rein LLP. Edward Lazarus, Chief of Staff to FCC Chairman Julius Genachowski kicked off the event with a nice keynote address talking about the broad goals of the FCC’s coming National Broadband Plan. Lazarus broke the ice by joking with the crowd — which is heavily made up of communications industry lawyers — that “The FCC is doing everything it can to provide full employment for telecom lawyers. Whatever else we are failing at, we are succeeding at that.” Again, it was a joke, so I don’t want to make too much out of it, but… No, strike that, I do want to talk about that for a minute! Because this is actually a very important question: Exactly how much bureaucracy and deadweight loss to the economy (in the form of more lawyering and lobbying) is going to accompany the National Broadband Plan?
Two years ago, I posted an essay on “Lawyers, Lawsuits and Net Neutrality Regulation,” in which I attempted to highlight the uncomfortable fact that Net neutrality regulation will likely lead to a bureaucratic nightmare at the FCC and a lawyer’s bonanza once the lawsuits start flying in court. Of course, now we have Net neutrality regulations and a National Broadband Plan pending at the FCC, so the potential for bloated bureaucracy will only grow larger. Do you think I am exaggerating? Well, here are some facts to consider from our recent experience in the field of “telecom reform.” In the years following passage of the Telecom Act, entire forests fell because of the thousands of pages of regulatory and judicial interpretations that were handed down trying to figure out what that word meant. In fact, let’s take a quick tally of the paperwork burden the FCC managed to churn out in just three major “competition” rules it issued in an attempt to implement the Telecom Act and define the “cost” of unbundled network elements (“UNEs”):
* Local Competition Order (1996): 737 pages, 3,283 footnotes
* UNE Remand Order (1999): 262 pages, 1,040 footnotes
* UNE Triennial Review (2003): 576 pages; 2,447 footnotes
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Glen Robinson, my favorite professor back at Virginia Law, will be giving a lecture about “Regulating Communications: Stories from the First Hundred Years” at George Mason Law School this Thursday (2/18) at 4 pm. You simply couldn’t find a better person to give that talk. Robinson isn’t quite old enough to first-hand stories all the way back to the birth of the Federal Radio Commission in 1926 and the FCC in 1934, but he started practicing communications law back in 1961, was an FCC Commissioner 1974-76, and has taught at UVA since 1976 (until finally retiring in 2008).
Reading about his long career is a bit like watching the British comedy series Black Adder: Somehow, like Rowan Atkinson’s character Black Adder, Robinson keeps popping up again and again at pivotal moments in communications law history—most notably, he worked to draft early anti-cable rules in the 1960s and voted for the FCC’s indecency prosecution against George Carlin’s “Filthy Words” monologue. But unlike Black Adder, who always happens to be at the right place at the right time, make the wrong decisions and foolishly learns nothing, Robinson sometimes made the wrong decision, but demonstrated that rare ability to rethink his approach and admit he was wrong—an intellectual honesty most famously exemplified by FA Hayek. Robinson grew to become among the most trenchant, and certainly the most sage, critic of the FCC’s constant evolution towards censorship and curtailing competition in the communications industry. His general skepticism about administrative regulation is perhaps the most thoughtful and refined you’ll find in academe—and not just in communications law. Continue reading →
The Reason Foundation releases my policy brief today looking at the effect network neutrality regulation will have on wireless applications and services.
Much has been written about the deleterious effect that regulating network management would have on broadband investment and innovation, and when applied to wireless, which is what FCC Chairman Julius Genachowski proposes to do, problems would only get worse.
The non-discrimination principle that Genachowski seeks to mandate would prohibit service providers such as AT&T, Verizon Wireless, T-Mobile and Sprint from using their network resources to prioritize or partition data as it crosses their networks so as to improve the performance of specific applications, such as a movie or massive multiplayer game. Yet quality wireless service is predicated on such steps. The iPhone, for example, would not have been possible if AT&T and Apple did not work together to ensure AT&T’s wireless network could handle the increase in data traffic the iPhone would create.
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It’s been a busy week in the Googlesphere. Google made headlines earlier this week when it aired a televised ad for the first time in the company’s history, and again yesterday when it unveiled Buzz, its new social networking platform. Today, Google announced bold plans to build an experimental fiber-to-the-home broadband network that’s slated to eventually deliver a whopping gigabit per second of Internet connectivity to 500,000 U.S. homes.
Google’s ambitious broadband announcement comes as welcome news for anybody who pines for greater broadband competition and, more broadly, infrastructure wealth creation in America. To date, Google has dabbled in broadband in the form of metro Wi-Fi, but hasn’t embarked on anything of this scale. Laying fiber to residences is not cheap or easy, as Verizon has learned the hard way, and Google will undoubtedly have to devote some serious resources to this experiment if it is to realize its lofty goals.
It’s important to remember, however, that Google is first and foremost a content company, not an infrastructure company. Google’s generally awesome products, from search to video to email, attract masses of loyal users. In turn, advertisers flock to Google, spending billions in hopes of reaching its gigantic, precisely-targetable audience. This business model enables Google to invest in developing a steady stream of free services, like Google Voice, Google Apps, and Google Maps Navigation.
So it won’t be too surprising if Google’s broadband experiment doesn’t initially generate enough revenue to cover its costs. In fact, I’m skeptical that Google even anticipates its network will ever become a profit center. Rather, chances are Google won’t be at all concerned if its broadband service doesn’t break even as long as it bolsters the Google brand and spurs larger telecom companies to get more aggressive in upgrading their broadband speeds (which, indirectly, benefits Google).
Google’s broadband agenda is great news for consumers, of course. Who can complain if Google is willing to invest in building a fiber-to-the-home broadband network and is willing to charge below-cost prices? Not me!
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The Washington, D.C., fight over “net neutrality” in some ways only scratches the surface of what’s really at stake in the question of government regulation of Internet service providers’ treatment of online content. The downside of permitting FCC and Congressional authority over cyberspace “neutrality” is hard to overstate.
A former colleague and friend, now at New Media Strategies, sent me a January 2010 article—“The Splinternet means the end of the Web’s golden age”—about the proliferation of non-compatible devices used online, and th
e shielding of much new content behind logins and passwords, like the way News Corp. “hides” Wall Street Journal content behind a paywall, and other perceived insults. The author doesn’t see the trend as reversible, but the tone implies what an ominous development this somehow is, as if all this abundance and customization is negative, and that caution is in order.
But the realities of pay models and splintering—like the fact that some journalists have families to feed and can’t write for free, that Google doesn’t see much of what’s on Facebook, and that I can’t stream your iTunes—have no metaphysical, free speech, or public policy implications. Emergent splintering online represents the beginnings of a groundbreaking expansion of the Web’s basic capabilities, not a curtailment. (Besides, many with pro-neutrality views have been upset with Google lately anyway.)
This hand-wringing and use of the term “splinternet” reminded me of a related speculation I’d made in Forbes nearly 10 years ago about the tailoring of networks and pipes. Disturbed by then-burgeoning calls for regulation of the Internet emerging from various quarters over issues like privacy, spam, porn and cyber-trespass, I called for a “splinternet” mindset then and put it as follows:
The Internet needs borders beyond which users can escape damaging political resolutions of [policy] battles, which are rooted in the Internet’s non-owned, common-property status. Conflicting legislative visions in a cyberspace populated by exhibitionists at one extreme and would-be inhabitants of gated communities on the other, reveal the basic truth that not everybody wants or needs to be connected to everybody else.
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For those of you inclined to read protracted legalese filings, NBC Universal, Comcast and GE submitted their Public Interest Statement to the FCC this week. You can read the filing here.
Many conspiracies have been touted, claiming that public control of communication mediums will be wrested away from the public because of this venture and that consumers stand to lose the most. Adam did a good job debunking these concerns earlier this month. The fact is that this merger in no way would result in the dreaded “M” word, aka monopoly.
Whatever the case, this process is still bound to take another year or so before finalization, which gives you, dear reader, time to process the entire 145 page document. Happy reading!
While the FCC considers whether to impose nondiscrimination and transparency regulation to all forms of broadband Internet access, Public Knowledge is proposing to subject broadband services to the same pervasive, overlapping, heavy-handed regulatory framework as century-old telephone service (see this and this) — a framework which a former FCC chairman during the Clinton Administration described as a hopeless “morass.”
PK is worried the U.S. Court of Appeals for the D.C. Circuit might rule in a pending case that the FCC doesn’t have jurisdiction to regulate broadband. The group also is fretting over a recent observation by AT&T that, “with each passing day, more and more communications service migrate to broadband and IP-based services,” leaving the public switched telephone network (“PSTN”) and plain old telephone service (“POTS”) we all grew up with “as relics of a by-gone era.” Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.