May 26, 2010

Dispatch From the Net Neutrality/NBP Front

Filed under: Corporatism, Internet Democracy — Tags: , , — Russ @ 9:14 am


A few weeks ago I wrote on the current policy battle over Internet transmission regulation, specifically net neutrality and a proposed National Broadband Plan (NBP). Today I’ll comment on recent developments.
2010 started with some promising rhetoric from the FCC. It issued its draft NBP, a comprehensive policy to expand affordable broadband access to underserved regions while safeguarding consumer and privacy rights and strengthening cybersecurity. This dovetailed with newly proposed net neutrality principles which, while questionable in their (lack of) breadth, seemed to augur the agency’s commitment to the goal.  Although the FCC didn’t propose actual reclassification of Internet provision as a Title II “common carrier” rather than a Title I “information service”, which would seem to be the best policy, it claimed to be confident it could achieve its goals under the existing classifications.
This paradigm was upended by a Court of Appeals decision that under the status quo classification the FCC does not have the authority to regulate Internet transmission. Immediately pundits followed with a welter of prescriptions. Some said the FCC should just reclassify on its own authority (just as the original Title I classification was done by Bush-era fiat), others that we need legislation to bestow regulatory authority, while Republicans took the lead in advocating the status quo.
What does the status quo portend? That telecom rackets like AT&T, Comcast, and Viacom will be able to further entrench their monopolies, providing ever worse service at higher cost, while net neutrality and Internet democracy itself are destroyed forever. “Competition” is already dead. Almost nowhere is there any more than a choice of two or three providers, market access for new entrants is practically impossible thanks to massive infrastructure costs and existing pro-racket regulation, as in any mature sector the rackets now spend revenue not on expanding infrastructure and access and improving service, but on rent-maintenance activities like marketing, lobbying, and of course executive pay. The moment they feel secure enough in this monopoly, they’ll jack up rates enough to radically ration access itself by wealth, and impose political censorship. They probably won’t even need to go the heavy-handed Australian legislative route (which would probably be too obviously unconstitutional anyway). They’ll simply enforce it through the TOS “contracts”* they force you to sign to get online in the first place. This is a clear and present danger.
[* Since this issue, that abridgement of online free expression rights via “contract enforcement” is valid and not a restriction of freedom, comes up even among otherwise reasonable people, let’s be clear.
We the people have a right to free expression on the Internet. We built it, we paid for it, “private” infrastructure investment was always heavily subsidized and by now is barely a dribble anyway. It’s public property. It belongs to us.
So if a provider monopoly can rig the system so that a citizen can gain online access only by signing away his constitutional rights, that’s not a valid “contract”, but imposed tyranny.]
In the aftermath of the court case the FCC squirmed before Congress, at first lamely saying it thought the decision hadn’t changed anything while Republicans beat them with sticks saying Yes It Did. Eventually the FCC came around to this way of thinking. So the question was: If they wanted to forge ahead with these policy initiatives, how would they go about it in light of this court case?  
This month of May started out not so merry, with the FCC signaling that it was going to cave in on net neutrality and anything beyond a vestigial NBP. It looked like the status quo, with help from the courts, had won. But on May 5 Senator Jay Rockefeller and Rep Henry Waxman sent the FCC a letter demanding that it reaffirm the policy imperative, while they worked toward the same goal in the Congress. This seemed to somewhat bolster the agency’s spine. Commissioner Genachowski soon declared that the FCC would look into a kind of reclassification after all: He’d seek ” a ‘third way’ between a weak Title I and a needlessly burdensome Title II approach.”
To refresh, under Title I of the Communications Act “information services” have broad freedom as far as charges and treatment of content (at least in pricing), while Title II “common carriers” like telephone companies must adhere to strict anti-discrimination policy. They can’t engage in access discrimination or charge users extra for the same service based on magnitude of usage.
So according to some interpretations Genachowski’s statement sounds like he might want to keep the Title I classification for Internet providers while adding non-discrimination obligations, perhaps under the “enhanced services” classification according to the 1996 Telecom Act.
This sounds dubious. For a regulator, you should go at least as far in principle as you intend to go in practice. If there’s to be any mismatch, practice should be more lenient than principle, not the other way around. With a regulator you have to assume a weak principle means even weaker practice. (For that matter the Rockefeller-Waxman letter was also underwhelming, calling for a “light regulatory touch”.)
In this case, it would be better to establish the Title II principle as the basis going forward, and if it’s really necessary carve out exemptions (which I doubt it would be, and I feel weird sounding like a liberal messing around with the intricacies of “regulation”, but I’m not sure that the Internet, relying as it does upon this massed technical infrastructure, might not be an exception to my general view of regulation, though I’ll get to a more robust anti-monopoly idea in a moment; my ideas on this are still forming). That would be better than to stick with the principle, “these are information services, not communications carriers”, and then try to add some “enhanced” regulations to conserve the integrity of the carrier aspect of the bundle.
The rackets, of course, in a version of their standard Status Quo Lie, claim that switching from Title I to Title II would be some radical change. In fact the Bush declaration under Title I was conceptually radical, since these providers are obviously more like common carriers than information services. So to formally classify them as Title II communication services, let alone use Genachowski’s weaker “third way”, would be a step away from radicalism and toward moderation.
I can think of a simpler way to deal with the vertical monopolies involved here. Either break them up, or at least impose separate formal classifications on the separate aspects of an ISP. The transmission aspect is obviously Title II by right. This should apply to all modes of transmission, wired or wireless, or any other kind. Needless to say, antitrust policy applications aren’t “on the table”, either in the administration or Congress.
Finally, Rockefeller and Waxman have announced their intention to hold “meetings” with “stakeholders” in June, toward eventual legislation. We can only imagine the gruesome lobbying which will ensue.
So what’s the best path forward, given the political possibilities? Since I have zero confidence in Congress, on the contrary I predict there will never be another significant piece of constructive legislation for as long as the kleptocracy exists (not to mention the vagaries of the session calendar and the election), it follows that our best bet is agency reclassification. But will this be done either? It’s hard to believe it will be.
But somehow it has to be if our Internet democracy, the last large-scale democratic space we have left under the kleptocracy, is to be preserved. Right now I can’t think of anything better to say, but I’ll keep thinking and writing about it and see what comes up.


  1. […] […]

    Pingback by Net Neutrality: Battle Lines « Volatility — August 2, 2010 @ 1:52 am

  2. […] said that breaking up the rackets is the only answer. That’s as true here as everywhere else. Anti-trust would be a good tool for this and should be applied to both the horizontal and vertical monopolies that afflict us.   Then with any luck a parasite […]

    Pingback by The NYT’s Nocera Lies About Net Neutrality « Volatility — September 4, 2010 @ 7:04 am

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