Tell Congress to Fix the DMCALearn More About Section 1201
The tone for the latest round of debate about whether there should be an Open Internet was set, not by the latest round of speeches and statements by industry executives, nor even by the emphatic statements of self-righteous politicians at a Congressional hearing.
No, what’s happening now could be summed up in a thought from the author Thomas Pynchon, and his book, Gravity’s Rainbow. Scattered throughout the 800-some pages of the novel are five “Proverbs for Paranoids.” The one relevant to our discussion of the Open Internet is #3: “If they can get you asking the wrong questions, they don't have to worry about answers.”
The wrong question is – how should the Internet be regulated? The right question is – how should the online rights of consumers be protected? Yet, it’s the wrong question on which the industry-fueled discussion has dwelled. This is not to say that even wrong questions don’t deserve answers. At the end of the day, they are not the definitive answers that wrap up an issue, even if they do make for lively discussion.
Verizon Executive Vice President Tom Tauke started things off last week with a speech about the failure of regulation. Tauke is an earnest-sounding speaker, reasonable in tone. He, and Verizon, like to play the “good cop” to the more bombastic, in-your-face “bad cop” that’s AT&T, which is more prone to the brute force approach to public policy influence. Both companies generally end up in the same place; it’s just a question of how they get there.
Instead of old, outdated regulations which couldn’t possibly keep up with our fast-growing and evolving Internet, Tauke suggested a council of industry wise men and technicians to hammer out pesky little problems. “Self-governance” was the model he proposed, capable of giving “quick answers” to a dynamic industry. Another view of that might be “industry cartel.” Even if the Federal Communications Commission (FCC) has been “captured” from time to time in its history by one industry or another, the Communications Act is still around to be enforced, should a public-spirited agency choose to enforce it. In some quarters, the notion of the public interest being different from the private interest still has some currency.
Heaven forbid the Commission use actual regulations to keep these big quasi-monopolies in line. A “fresh look” is what’s needed, Tauke said, before quoting former FCC Chairman William Kennard’s speech from 1999 about the need for deregulation. (How many Internet Service Providers were there in 1999? Thousands and thousands, and under regulation, no less.) That talking point would show up repeatedly over the week, as would another – that the FCC has “no statutory authority” over broadband Internet access. Both Tauke and AT&T’s chief lobbyist, Jim Cicconi, who wrote that the FCC has no authority “over the Internet” and that any decisions about FCC authority should be made by Congress.
Both of those gentlemen were around when the FCC did its little regulatory shell game and transferred DSL service out of the regulated “common carrier” status in 2005. Neither at the time seemed to have a problem with the FCC’s jurisdiction then, although their companies (or their forbears) were pleased to have the product move into a more mushy deregulatory section of the law. But now that some people are thinking about moving it back into some sort of protected status – well, we can’t have that. Should the FCC try it, we’ll see you in court. That’s not a threat from Verizon and AT&T; it’s a promise, a self-fulfilling promise of litigation to bring down the entire regulatory communications structure of the country.
Within that self-governance structure was the radical revelation that Tauke really wants to regulate the Internet – the whole Internet. Those of us who want some regulation want to confine our view of FCC authority to Internet access provided by telephone and cable companies, a traditionally regulated service. Not Tauke – he wants the whole enchilada: “So the level-playing field needs to be big enough to include all of the players. If you’re on the field, then the referee can blow the whistle.” Now that’s more radical than anyone in the public-interest community has asked for. It’s more radical than anything we would ask for. And it makes no sense, particularly for someone who wants less regulation, rather than more. The FCC has no authority over “the Internet,” as the ill-phrased version of the argument goes. But it has, and does, have jurisdiction over services that connect people to the Internet. No need for Congress to get involved – the law already exists.
Not surprisingly, the industry message found a great reception in Congress, particularly from Republican members (and a couple of Democrats), who went for what seemed like hours at a hearing of the House Communications Subcommittee with the intent of making life miserable for FCC Chairman Julius Genachowski and his colleagues while attacking the idea of giving consumers some legal recourse and protection under the law and praising the private sector for deployments. (Props to Commissioners Copps and Clyburn for defending competition. Also to Commerce Committee Chairman Henry Waxman (D-CA), Ed Markey (D-MA) and Mike Doyle (D-PA) for standing up for consumers. As Markey said, it won’t be the “end of times” if regulation does ensue, and Waxman was right when he said DSL was a regulated service, even if others disagreed.)
The Republicans were uniform in their opposition to "investment-killing" regulation. How embarrassing that Verizon has halted investment in their FIOS program, even without the scourge of Net Neutrality.
Even while the Republicans, including Marsha Blackburn (R-TN) and Mary Bono Mack (R-CA) were complaining about regulation, they also wanted the benefits of intrusive government in some other way. Barton wants to make sure the Universal Service Fund is reformed to include broadband– that’s a subsidy worth billions that only works if the FCC has jurisdiction over high-speed Internet access. Blackburn and Mack want the FCC to enforce copyright law through the Open Internet rulemaking the FCC is now undertaking.
There are some hints that even their telephone company clients are starting to crack on the network openness idea. Just recently, Qwest, in a repudiation of the “private sector can do all” philosophy, said it was applying for $350 million in stimulus money from Uncle Sugar to build out in rural areas. AT&T joined in a coalition to bring broadband service to low-income areas. Remember, neither of those telecom giants applied in the first round of stimulus because they didn’t like the condition that networks build with the grants had to be open to competitors to offer service. Is that dam cracking? Or do the companies figure they can browbeat the government into dropping the condition, as they browbeat the government in other portions of the stimulus program?
The bottom line, however, is not regulation for regulation’s sake. How can consumers best be protected, and how can we be put into the best position to receive the benefits of competition and innovation? How can an Open Internet be guaranteed? Through a cozy industry cartel determining what’s right and wrong, or through enforcement of laws and rules? Neither system is perfect, but we pick the latter. No one is calling for regulation of a 1930s-style regulation, as the industry/GOP talking point goes. On the other hand, some concepts, like non-discrimination, are timeless, and apply as much to 1 mbps broadband as to a party line.
One certainty is that the issues generate an immense amount of heat, if not always of light. One blog post by my colleague Harold Feld, about some unfortunate remarks by Amb. Phil Verveer about the dangers of Net Neutrality generated four responses within days in blog posts attacking Harold while defending discriminatory networks. Some of those got personal, and heated, more so than was necessary. We found it curious that so many posts on a topic foreign to some of the writers were generated so quickly.
Why is this? We don’t know, but we turn to Pynchon for yet another accurate description, in Proverb #5: “Paranoids are not paranoid because they're paranoid, but because they keep putting themselves, f*ing idiots, deliberately into paranoid situations.” As Pynchon realizes, some times you can’t help but put yourself into a paranoid situation. You’re not paranoid if they really are after you.