Post Net Neutrality In-Depth Analysis

Title II, Robert McDowell, and The Boy Who Cried “Black Helicopter”

February 24, 2015 , ,

Depending on where you live, certain migration patterns mark the turn of the seasons. In New England, the distinct V shape of Canadian geese migrating south marks the return of fall. In California, the return of the swallows to their home at San Juan Mission in Capistrano marks the return of spring. And, in Washington D.C., the return of former FCC Commissioner Robert McDowell and friends to tell us that the U.N. will take over the Internet marks a debate around network neutrality and Title II.

In what has become the traditional Wall Street Journal op ed (you can read the first one from January 2010 here for comparison purposes), McDowell warns us that if the U.S. adopts strong net neutrality rules and/or reclassifies broadband as a Title II telecommunications service, then Russia and China and other regimes trying to censor the Internet will succeed in having the International Telecommunications Union (ITU), a U.N. organization, assert jurisdiction over Internet governance.

As we have said in the past, other nations opposed to an open Internet certainly try to push their agenda at the ITU. As we have also noted, far too many people in telecom policy use this concern to push their own agendas. Commissioner McDowell and the others making this argument have been wrong every time, and will continue to be wrong for the following reasons.

The ITU does not work based on how other countries classify broadband. Canada and the European Union countries, allies in opposing extension of ITU authority over Internet numbering and naming resources, have classified broadband as a telecommunications service for more than a decade. This did not lead to extending ITU jurisdiction over broadband over them or anyone else. Which leads me to the next point.

Our allies at the ITU have already classified broadband as Title II service and imposed net neutrality regulations, and no one raised this as an argument for ITU jurisdiction over the Internet. While the “Black Helicopter Chorus” claiming the U.N. will take over the Internet likes to give the impression that just classifying broadband as Title II will automatically give the ITU jurisdiction over the Internet, they will acknowledge if pressed the ITU doesn’t work that way. Instead, they argue that once we classify broadband as Title II, Russia, and other foreign dictators will pounce upon this and proclaim that if the U.S. “regulates” broadband with network neutrality and/or reclassifies broadband as Title II, we will lose all our allies and prove unable to resist Russia, China et al. because of our “hypocrisy.” (The hypocrisy of Russia, China, et al. in proclaiming their love of an open Internet while imposing censorship regimes at home will make no difference because, well, U.N., black helicopters, etc.)

Despite the EU, Canada, and other allies adopting strong net neutrality rules and/or classifying broadband as Title II, and five years of predictions by McDowell and friends, no one at the ITU ever makes this argument. We had lots of predictions before the ITU meeting last fall that, unless we dropped the Title II agenda, we would certainly find ourselves deserted by our allies. Happily, as with every other such prediction in the last 5 years, they proved wrong once again.

I want to stress they proved wrong not just in the sense that the argument was unpersuasive. I mean wrong in the sense that no one at the ITU even raised the argument.

No one makes the argument because it isn’t a very persuasive argument. No doubt McDowell and his supporters will tell us that our allies classifying broadband as a telecommunications service doesn’t count at the ITU because, only what America does counts, not whether 30 or so countries that also oppose ITU jurisdiction of the Internet already classify broadband as a telecommunications service. They will also tell us that they may have been wrong for the last 5 years predicting that the ITU will notice our debate on Title II, all that will change if we actually classify broadband as Title II.

They will once again be wrong. As actual participants (such as the head of our delegation to the ITU in 2014, Ambassador Daniel Sepulveda) have recently observed, no one makes the “Title II” argument at the ITU because it isn’t a particularly good argument. Countries that support our position at the ITU do so because they share our view that extending ITU jurisdiction to Internet governance would create grave concerns for free speech online and the future of the Internet generally. They do not do so because the United States has a particular regulatory regime, or because they agree with us in all things.

Conclusion

While perhaps not as beautiful or inspiring as the annual spring Cherry Blossom Festival by the National Mall, the annual sight of former Commissioner McDowell testifying before an approving Congressional Republican Committee has become a Washington tradition. As with the annual Ground Hogs Day predictions by Punxsutawney Phil three weeks ago, it’s a fun media event – but it doesn’t really predict anything.


About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on 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. Circuit 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.”