Since When Did Nearly 10 Years of Study Become a “Rush.”October 18, 2009
Sometimes, the Network Neutrality debate makes me feel like a grumpy old policy wonk. Well, I suppose I am a grumpy old policy wonk, but its rather unfair of the folks in the NN debate to make me feel that way — especially when they know better.
The most recent reminder of my age and wisdom/oncoming decrepitude is the rather silly argument that we are somehow “rushing” into network neutrality — because nearly ten years of study and debate cannot possibly be enough to justify this being the first major policy initiative for the Genachowski FCC.
Yes, it was 9 years ago last month when the FCC launched its first inquiry asking how to classify “high speed access to the Internet over cable and other facilities. Back then, of course (as I explained in my first net neutrality blog post back in 2006) we didn't have the term “network neutrality.” We talked about interconnection obligations and the prohibition on messing with user content and the ability to connect devices to the network, but we didn't have the term “network neutrality.” Instead, we talked about the far more ambitious “open access,” which meant allowing retail competitors to lease access to the underlying network (or at least have interconnection access at key points). You know, the stuff other countries used to leapfrog ahead of us.
But I digress, as we old policy wonks do from time to time. You young folks with your “tweets” and your “text messages” with 140 character limits got no patience I tells ya. Anyhoo. We next started thinking real hard about this when the FCC issued its declaratory ruling on cable modem service in 2002. In addition to declaring cable modem an “information service,” the FCC asked what — if any – regulations it needed to adopt to protect subscribers in the deregulated cable modem world. At about the same time, the FCC released a Inquiry into how to classify telco high speed access. Again, the FCC asked what, if any rules it ought to adopt if it decided to deregulate telco broadband access by defining it as an information service.
Flash forward again to 2005. The Supreme Court affirmed the FCC's classification of cable modem service as an “information service” in the Brand X case and, two months later, the FCC issues the Wireline Framework Order and the Internet Policy Statement. This establishes that both cable modem and DSL (and telco fiber) high speed Internet access are “information services” and — as it did in 2000 and 2002, asks what regulations it should adopt to protect consumers. It explicitly addressed enforcement of interoperability and interconnection:
We intend to swiftly and vigorously enforce the terms of this Order. Significantly, through review of consumer complaints and other relevant information, we will monitor all consumer-related problems arising in this market and take appropriate enforcement action where necessary. Similarly, we will continue to monitor the interconnection and interoperability practices of all industry participants, including facilities-based Internet access providers, and reserve the ability to act under our ancillary authority in the event of a pattern of anti-competitive conduct.
(par. 145). Again, I'm just an old grumpy policy wonk. But even back in 2005, the FCC said it would take the possibility of carriers misbehaving seriously, would act swiftly on consumer complaints about it in conformance with the Internet Policy Statement, and would continue to revisit this issue in light of further developments.
Then came 2007. 2007 proved a rather busy year. First, the FCC issued a declaratory ruling that wireless broadband access was an “information service” and received almost immediately in response the Skype Petition asking the FCC to formally declare that the FCC's Internet Policy Statement applied to wireless (which echoed a sentiment expressed by Commissioner Copps at the time the FCC released the Wireless Declaratory Ruling.
In addition, the FCC also issued a Notice of Inquiry on Net Neutrality. If you are attentive and look at the docket number for the Network Neutrality Notice of Proposed Rulemaking on the FCC's public meeting notice, you will observe that the proposed Notice of Proposed Rulemaking has the exact same docket number as the inquiry begun two and a half years ago.
The Commission teed up just about everything one could wish in the 2007 Net Neutrality NOI, to the approval of Republicans such as Commissioner McDowell, who wanted to develop a full record. Along the way, the FCC set forth its theory of jurisdiction and warned broadband access providers (again!) that it had power to enforce the 2005 Internet Policy Statement.
Then, of course, we had the Comcast/BitTorrent case, which was incorporated into this docket. Again, that's a pretty rich record.
As for wireless, the record gathered in the Skype Petition docket as well as directly in 07-52 (the Network Neutrality docket) provides another extremely rich record for the FCC to act upon.
So, after 9 years, five separate proceedings, a two-and-a-half year long Notice of Inquiry which specifically asked whether to issue rules to protect network neutrality and whether to amend the existing 2005 Internet Policy Statement, I think the argument that we are somehow “rushing” to a rulemaking is rather silly. One can argue that we don't need one based on the evidence (I disagree, but one could so read the evidence), or that it would be a bad idea (again, I disagree) or have various other merit based arguments. But I really don't think you can call it “rushing” into anything at this point after 9 years.
Sometimes I think I'm the only old policy wonk what remembers this stuff. No institutionally memory for these details these days. All you young 'uns and industry lobbyists don't got no respect for the record. Why back in my day people used to read through the record before popping off about “rushing” into anything . . . . hey! Come back here! I'm still talkin' to you!
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” a guide to what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”