September 2, 2010

The FCC and Net Neutrality: Superfluous Public Comment = “No Comment”

Filed under: Internet Democracy — Tags: , — Russ @ 7:05 am


Continuing its truant pattern since spring, the FCC has called for an extension of the comment period on its proposed net neutrality rules.

After months spent gathering comments about preserving an open and competitive Internet, the F.C.C. requested more feedback on Wednesday about whether regulations should apply to wireless Internet service.

The agency is also asking for comments about one of the most hotly debated Internet regulatory issues: special services that offer to prioritize certain digital traffic for a fee.

Those two issues were at the center of a recent proposal by Verizon and Google that generated widespread debate in the telecommunications and Internet communities.

To recap the timeline, the FCC issued its proposal for rulemaking and held the requisite comment period. In April an appeals court ruled that under the FCC’s existing classification scheme (a classification done by fiat in 2005 and which can be changed at the FCC’s will) it lacks authority to informally enforce net neutrality principles. (The 2005 classification of access providers as “information services” rather than “communications” claimed any additional regulation needed could be performed under “enhanced authority” provisions; this is what the court denied.) This called into question the agency’s formal net neutrality proposal as well as its proposed National Broadband Plan.
The obvious solution is for the agency to reclassify ISPs as communications services. The Communications Act also provides for separating communications from information elements of a bundled service, applying the two different levels of regulation. The FCC’s own proposed “Third Way” is a version of this. Either would certainly satisfy any non-corrupt court.
But instead of doing what it can, should, and must, the FCC has consistently acted as if the court setback has permanently traumatized it. Later last spring it was hinting it wanted to cave in completely. Pro-racket Congressmen signed threatening letters while astroturf groups propagated the lie that net neutrality would constitute an FCC takeover of the Internet, when on the contrary it would prevent Interent racketeering, a takeover of the Internet by the same corporate criminals who crashed the economy. A stern letter from Waxman and Rockefeller seemed to have reinvigorated the process; after some earlier defeatist talk, Commissioner Genachowski reaffirmed his devotion to the Third Way and the net neutrality rulemaking.
But at the same time he convened an anti-democratic cabal of telecom rackets and big information providers to negotiate the issue. The FCC’s goal was to contravene the democratic process and gut net neutrality indirectly. The goal was to broker a deal between the telecoms and big information providers like Google and Amazon which would be beneficial to the latter and pull up the ladder behind them on all smaller info providers. Big Info would join the big telecoms as entrenched rackets dominating a newly enclosed, feudalized Internet.
The evidently unsatisfactory tempo of this haggling led Google and Verizon to strike their own bilateral deal and spew their own proposal for a phony “net neutrality” deal which would actually gut it. Genachowski apparently took this as emblematic of the failure of the FFC-brokered discussions and ended them. (For a more optimistic take on this closure, see here.)
Public commentary throughout the process has been overwhelmingly in favor of strong net neutrality rules and against a corporate takeover of the Internet. The reaction to the Google-Verizon Pact was particularly fierce.
Optimists took all this as a hopeful set of indicators that the FCC would finally find a backbone and go ahead and do the right thing – issue the net neutrality rule and go ahead with the Third Way classification.
Instead today we get the ultimate whimper: an extended comment period, which will extend the existing procrastination at least beyond November.
There have already been two extended comment periods, both of which established a clear demand for strong net neutrality rules among everyone except the lobbyists. The agents of delay and subversion are trying to claim that yet another round of comments is necessary to satisfy the courts:

F.C.C. officials said the request for additional comments was tied in part to the Google-Verizon proposal. But the agency was also trying to guard against generating unintended negative consequences, and to ensure that any rules it did adopt would not be thrown out on a technical claim that the commission had not followed federal rule-making procedures.

“As we’ve seen, the issues are complex, and the details matter,” Julius Genachowski, the F.C.C. chairman, said in a statement. “Even a proposal for enforceable rules can be flawed in its specifics and risk undermining the fundamental goal of preserving an open Internet.”

But this is a lie. The agency has been punctilious to a fault about the process. No non-corrupt court would ever find that the FCC hasn’t already gone by the book. And of course if judges on a court (or anyone else) are corrupt, then nothing you could do would ever satisfy them. (Appeasement never works – a rule; no exceptions.)
So there’s no conscientious reason for this delay. The real reason is simply to again “kick the can down the road” as Derek Turner of the Free Press said. The FCC is now using the parameters of the G-V Pact itself (as Google and Verizon intended; they were trying to set political standards for the struggle going forward) as the pretext for starting from square one.

The FCC will seek comments on whether net neutrality rules should apply to mobile broadband or specialized and managed services, FCC Chairman Julius Genachowski announced Wednesday. Under a net neutrality proposal released by Verizon Communications and Google in August, mobile broadband and managed services would be exempt from net neutrality rules, but many consumer and digital rights groups have complained that those exemptions would fragment the Internet and hurt users.

There’s no call whatsoever for recasting the crux of the debate this way and saying we need to rehash the whole thing. This is a wretched little ploy by Google and Verizon whose spirit was already resoundingly rejected in the prior comment rounds, and has been rejected in particular since the pact was announced. No one who commented before would feel the need to rethink because some new consideration has been brought to light. There’s nothing new here at all. (Indeed, if anything the fact that Google sold out after having claimed to support net neutrality for all those years will probably deepen feelings that net neutrality rule-making is even more imperative and should be considerably stronger than the rules the FCC actually proposed.)
If there’s still any doubt, look who’s praising the extension:

The National Cable and Telecommunications Association, a trade group representing cable-based broadband providers, promised Wednesday to work with the FCC on net neutrality rules. The new inquiry raises “important and complex issues,” NCTA said in a statement.

Randolph May, president of conservative think tank the Free State Foundation, praised the FCC for issuing the new inquiry.

“Seeking further comment on the issues relating to specialized services and wireless platforms can only serve to further clarify the issues and, potentially, bridge differences,” May said. “This is surely positive.”….

Thomas J. Tauke, an executive vice president at Verizon, said the company was encouraged by the commission’s decision to further study net neutrality as it applied to wireless broadband and specialized services.

“At the same time, it remains clear that whatever action the F.C.C. takes will be clouded by legal uncertainty until the Congress enacts legislation that spells out the authority of the F.C.C. and establishes a broadband policy,” Mr. Tauke said.

As that last line said, the rackets want this thing decided in Congress, which is likely to either do nothing (thus ratifying the status quo heading toward Internet enclosure) or pass a sham bill. This outcome would be even more likely in next year’s Congress.
The FCC again looks willing to abdicate and abandon net neutrality and Internet democracy to its fate.
Was there ever any reason to hope for effective regulation here? Is there still any chance of it, if everybody comments yet again, this time demanding even stronger rule-making? This time explicitly rejecting the parameters of the Google-Verizon Pact as absolutely unacceptable? Even under a Republican Congress, a resolute FCC could still accomplish this.
My rationale for thinking it’s still possible is that the FCC never had to issue proposed rules in the first place. The number one piece of evidence that Obama wants to gut Social Security is that he unilaterally, as an act of pure volition, set up his Star Chamber, his Catfood Commission. So by the same logic, the FCC’s original unforced, voluntary proposal of net neutrality rules is the best evidence that in principle it does want to make such rules. If they’d always wanted to gut net neutrality, the path of least resistance would’ve been to do nothing, right from the start. So I go with the premise that, while maybe never gung-ho about it, the FCC did have a basic interest in preserved net neutrality.
Since then, the evidence has been that, while maybe having started with these good intentions, Genachowski is craven and inertial, and is likely to act in accordance with the strongest stimulus upon him at any given time. Thus his multiple flip-flops in terms of indicating his will: proposing the rule, then backpedaling in the face of the adverse court decision, then flipping again after receiving one Congressional letter, but convening the racket cabal in the face of corporate pressure (including a contrary congressional letter), now seeming to want to just throw the bone out there once and for all for the public and the rackets to fight over by reverting to “comments” again. (Anyone who’s read The Peter Principle will recognize this pattern of behavior. The “teeter-totter syndrome”, perhaps? Or in this case the “John Q. Public Diversion”.) Almost certainly his dream is that Congress will take the whole mess off his hands.
But as I said, I think it’s still possibly worth trying again, so I hope people will comment. As I’ve pointed out before, this seems to be an issue where renouncing the system can’t work by itself. Internet democracy, so far as I can see, will need regulation to protect it.
That doesn’t mean I think it’s an exception to my Rule of Rackets (you cannot regulate rackets; they will always win the war of attrition; you have to destroy them completely; as a rule the ROI will be much better if we eschew the “regulation” delusion completely and work on the destruction). All I mean here is that while we try to muster the counterforce to destroy these rackets, we do still have to keep fighting the war of attrition. Here rejection and passive resistance won’t suffice; action within the system is necessary.

1 Comment

  1. Would you mind enabling rss feeds, because this page is difficult to read on my phone. Don’t mean to be a complainer, but I figure if it would help me it would probably help others as well. Thanks 🙂

    Comment by speeding — August 11, 2011 @ 8:04 am

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