The FCC's announcement yesterday of an attempt to pursue a Net Neutrality policy in the wake of the Comcast decision highlighted, among other things, the obsolescence of the regulations under which the FCC now regulates the Internet.How so?
To start with, I was struck by this line in Allan Sulkin's blog on the subject from yesterday:
As the Internet gradually replaces the traditional public switched telephone network (PSTN) as the means to transmit voice communications, it would seem natural that the FCC should want to exert a greater level of monitoring and control, though some may see this as only the first step towards expansion of their regulatory powers over all things related to the Internet.
Allan's right, and I think he understates the extent to which it's not just about finding new ways to regulate telephony; it's about finding a way to regulate the current environment under rules that were written in a time when telephony was all there was to worry about. Indeed, what Allan's getting at is a point that was addressed by Austin Schlick, the FCC's General Counsel, in his position paper on the move, "A Third Way Legal Framework for Addressing the Comcast Dilemma":
Paradoxically, the FCC would be on safe legal ground only to the extent its actions regarding emerging broadband services were intended to affect traditional services like telephone and television.
Schlick's "Framework" also contains a concise explanation of why we've reached the regulatory tipping point now:
When Congress amended the Communications Act in 1996, most consumers reached the Internet using dial-up service, subject then (as it is now) to Title II [i.e., telephony regulations]. Cable modem service was emerging, though, and telephone companies were beginning to offer DSL broadband connections for Internet access under Title II. Aware of the changing landscape, Congress gave the FCC authority and responsibility via section 10 of the Communications Act to "forbear" from applying telecommunications regulation, so that the new services are not subject to needlessly burdensome regulations. And in section 706 of the Telecommunications Act of 1996 (47 U.S.C. § 1302), Congress directed the FCC to use its new forbearance power to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans."
One more citation from the "Framework"--Schlick's justification for continued FCC regulation of ISPs and broadband, by whatever name you want to call the service:
After Comcast, the commonsense consensus that there should not be unreasonable conduct by broadband access service providers remains. In the Commission's pending Open Internet Proceeding, for example, Comcast has urged "a standard based on 'unreasonable and anticompetitive discrimination.'" Sprint Nextel has commented that "[t]he unreasonable discrimination standard contained in Section 202(a) of the Act contains the very flexibility the Commission needs to distinguish desirable from improper discrimination." And AT&T has concurred that the "unreasonable discrimination" prohibition in section 202(a) "is both administrable and indispensable to the sound administration of the nation's telecommunications laws."[emphasis added]
Fighting It Out To me, it makes no sense to view this issue in anything other than the power-politics context in which it's being fought: Democrats want "Net Neutrality," Republicans don't. Republicans are hitting up the ISPs for money in return for carrying their water; Democrats are doing the same thing with the Googles of the world.
In the real world, which policy gets adopted will matter; if Comcast prevails, you will see them do to other traffic generators what they did to BitTorrent; it's naive to think otherwise. On the other hand, if the pro-Net Neutrality forces prevail, or even if there's an extended period of uncertainty, you will see ISPs being reluctant to upgrade the broadband networks and cooperate with the FCC's goal of universal broadband and narrowing the digital divide. As it is, the big players are unloading unprofitable rural exchanges already.
The temptation in a situation like this is to look for a Grand Bargain, something big you can give to all parties to get the process jump-started. The FCC/Democrats might consider getting behind AT&T's bid to retire the PSTN, in exchange for support from AT&T (and presumably Verizon, too) for the "Third Way" approach.
The problem is that cutting Comcast out of the process would pretty much guarantee that the issue would wind up right back in court, where you'd have to think their chances are pretty good. The Republican commissioners dubbed the Third Way "an attempt to foist burdensome rules excavated from the Early-Ma-Bell-monopoly era onto 21st Century networks," and indeed Schlick's plan does have something of the air of a fishing expedition about it, selectively deciding which Sections of law to embrace.
So this devolves very quickly into political philosophies: Do you despise government regulation, or accept it? Are you a Republican or a Democrat? Those questions, not what's best for the country and its communications networks, will drive this debate.
