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There is no lacking for clever minds at the Federal Communications Commission (FCC). They have all sorts of bright lawyers and economists and the like working on trying to make some sense of the world of telecommunications in all its glory.
Last time we checked, however, they didn’t have any escape artists on staff. Unfortunately, that’s what they will need to try to get away from the restraints put on the Commission by the U.S. Appeals Court, D.C. Circuit in the now famous case involving Comcast’s throttling of BitTorrent.
The Court found unanimously that the way the FCC enforced its policy statements for an Open Internet under a general part of the Communications Act (Title I) wasn’t legal, and that some of the other sections of the law didn’t pass muster, either. It was a pretty strong opinion as these things go. It was crucial because everything that the FCC wants to do to proceed with its broadband strategy is dependent now on questionable legal authority as a result of that court ruling.
As FCC General Counsel Austin Schlick wrote a lot of the big ticket items in the National Broadband Plan are dependent on the FCC having the authority to move forward. What’s at stake? Schlick put up the list: “Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.”
Now the Commission has a couple of ways it can move forward from here. More and more it’s looking as if the clever minds are trying to find another way to assert their jurisdiction under Title I, or under another section of the Communications Act (other than Title II). No one has said anything publicly, but it’s what they haven’t said that’s giving people pause. FCC Chairman, Julius Genachowski has said he thinks the FCC has the legal authority to proceed on broadband, but he hasn’t yet articulated publicly what he thinks that will be.
The big telephone and cable companies would be all right with that approach. They have said that the Title I construct is just fine with them – until it isn’t. They will say the right things in general and take the Commission to court every time on the specifics of any given policy.
That’s the warning Public Knowledge issued to the Commission in our reply comments in the Open Internet proceeding.
You can try the Title I route all you want, and the carriers will say they are behind you – except when they don’t like what the Commission has proposed. Our comments noted the comments of Comcast in one instance, and the National Cable and Telecommunications Association (NCTA) in another, making that very point. We couldn’t have been more blunt with the FCC: “Even the same parties who, before any specifics are proposed, are happy to suggest that the FCC may have the ancillary authority to act in their favor on broadband matters may nonetheless challenge any specific FCC action they dislike.”
In other words, try to find the squirrely, clever way around the court decision, and you are just asking for trouble. You are trying to placate people who can’t be placated and who will cause you trouble endlessly. Even if you win one, the Commission will only have won a partial victory on one point of a Broadband Plan, or one piece of a policy. Every other one will have to be fought out.
As PK put it in our comments: “But if the FCC fails to ground its legal authority more firmly going forward, it can expect challenges to its authority each time it tries to update its regulations to reflect the new broadband-centric reality. The public deserves better than this legal brinksmanship.”
There is another way, and that’s to confront the issue directly, take the fight on once and be done with it. FCC Commissioner Copps appeared recently on Bill Moyers’ program and was typically blunt about the need for the fight to be fought.
Copps talked about the landscape: “I don't think we have telephone companies and cable companies and all this. We have broadband companies. And they're all in there competing with one another. They're all looking for control of the distribution. Now they're looking for content. All the recipes for monopoly and duopoly that we have seen throughout our history.”
Then, there was this exchange (from the transcript of the show):
“BILL MOYERS: How threatened is the whole idea of an open Net?
“MICHAEL COPPS: Oh, I think very. I think very. I think there are powerful players that are opposed to it. Are in a position to make their influence felt. None of these things are going to come easy. We've just been through the health insurance debate. We've got the financial debacle. None of this stuff gets solved without taking on taking on a fight. The government doesn't work that way. You've studied this history; I've studied this history. It's painful, it needs movements, it needs grassroots support, it needs the people.”
The fight, as Public Knowledge and as Copps sees it, to do the sensible thing. As Copps said on the program: “I want to call telecommunications, ‘telecommunications’ and go back to the openness that has characterized the net since it was first invented in the laboratories of the Department of Defense. That's not extreme. That's not radical. That's called going back to basics. That's called consumer protection 101.”
In our comments, Public Knowledge made the same argument. We want to take the uncertainty out of telecommunications by calling Internet access what it is – a telecommunications service. Period. We don’t have to make it a public utility, we don’t need the dreaded “heavy handed regulations” about which the industry constantly complains – even though any regulations would be considered “heavy handed.”
Sure, the telephone and cable companies will take the FCC to court if the Commission tries to reassert Internet access is a traditionally protected service. But the law is on the FCC’s side, and the facts are on the FCC’s side. The competition that the FCC thought would happen in Internet access hasn’t appeared. Consumers have fewer choices, not more. The digital services that provided Internet access back then were once “common carrier” services. The telephone companies and others may dispute it, but there were formal tariffs filed with the FCC which show it.
Let’s not get cute here. Genachowski and the FCC should take on the fight, meet the issue head on and decide America’s broadband future without getting cute and without the need for Houdini-like skills. They should do it not because PK advises it (although that’s a good reason), but because it’s the right thing to do.