October 1, 2010

Net Neutrality Silly Season Ends With A Whimper (Also an update on copyright thuggery)

Filed under: Internet Democracy — Tags: , , — Russ @ 4:50 am


Congress has been rushing to finish its useless session so its members can rush home to lie about all they accomplished. Given the caliber of recent accomplishments, this is on the whole a good thing. Not by design, certainly, but these days a do-nothing Congress is at least fulfilling the first Hippocratic dictum, Do no harm. I guess that’s the best we can hope for these days. (So let’s have no more nonsense about ending the phony filibuster.)
Meanwhile the FCC continues to set a standard of do-nothingism all its own on net neutrality. It seems to be in a permanent holding pattern of comment-seeking. Any reader of the Peter Principle will recognize this evasion tactic. It’s not that commissioner Genachowski (who has three votes for his “Third Way” proposal, and probably for full Title II reclassification, any time he wants them) doesn’t know what to do. It’s that out of whatever combination of cowardice and corruption he refuses to do it.
To recap, a year ago Genachowski, seemingly following up on Obama’s pro-net neutrality campaign promises, issued a passable-though-not-great rule-making proposal. The FCC seemed to be moving expeditiously through the rule-making process when everything was upset by an April court decision which invalidated the existing basis of FCC authority over the Internet. This basis, dating from 2005, classified all ISPs as “information serivces” under Title I of the Communications Act. This was a Bush ploy to avoid the correct Title II classification as communications services. (An ISP provides Internet access, and few care about the potemkin information services it may tack on. People purchase access, and they purchase it based on price and performance. So it’s clear by any non-Orwellian measure that they purchase a communication service, not an information service.)
The Bush FCC claimed it could still enforce net neutrality by using authority “ancillary” to Title I, typically vague bureaucratic notions of powers over things “related” to core goals. This is the theory the court struck down. So the court said the 2005 Bush framework of Title I plus ancillary authority was insufficient for the FCC to regulate Internet access and competition.
But contrary to telecom racket lies, the court said nothing about reclassification to Title II. By some readings of the decision the court was implicitly inviting the FCC to do just that.
So that’s what the FCC should have done, and what it still should do. Instead Genachowski came up with his “Third Way” compromise, which would formally separate the actual communication service from the tacked-on “information service”, retaining Title I for the whole but regulating the communication aspect according to the standards of Title II. This is in essence the same thing as the pre-court status quo, except more formalized. That’s often sufficient to satisfy a court, and the import of this decision was that such clarification of the lines and purposes of authority would satisfy it.
So although this compromise is pretty craven, it still could work to protect net neutrality if enforced*, and there’s no reason to think it would be rejected by a non-corrupt court. The FCC has already jumped through all the procedural hoops. It can and should now go forward with rule-making. The moment Genachowski is ready to vote for his own proposal, he’ll have the three votes he needs. But he keeps flip-flopping between calling for regulation and rolling over for the rackets and their whores in Congress. (He seems highly inertial and prone to obey whoever last put real pressure on him. From that we can deduce that Obama has put no pressure on him to protect the Internet, and that as with everything else his campaign happy talk about net neutrality was all a pack of lies.)
[* There’s some evidence, as we’ve seen during the legislative process with the food bills and the rule-making process with the FCC and net neutrality, that not every issue is like finance sector reform. There are some areas, these two in particular, where the political center of gravity seems closer to the ground and where public pressure can beneficially affect the outcome. So while we recognize that the kleptocracy as a whole is beyond redemption, and in most cases there’s no point engaging in the kind of stuff highlighted in the civics textbooks, nevertheless we must always be tactically flexible and be ready to identify exceptions to rules.] 
So the status is that we’re now waiting for public comment on the Google-Verizon proposal. Or as the FCC put it, comment on “the issues it brought up”, like managed services and whether or not wireless needs pre-emptive deregulation. Never mind that the public has already commented and recommented on all these same issues which are no newer just because Google and Verizon are trying to formalize them. The public has already overwhelming demanded strong net neutrality protection. And they were especially ferocious in their rejection of the G-V Pact as any kind of template for regulation of legislation.
The Google-Verizon Pact is intended to serve as such a template, such a setting of standards, much like 1486’s Malleus Maleficarum was intended to set standards for European witch-hunting. (Although that book was far more popular than the G-V Pact is today.)
In a bizarre development, Google and Verizon quickly had a taker in Congress, none other than Henry Waxman, previously a public defender of net neutrality. It was Waxman along with Senator Jay Rockefeller who sent a letter to Genachowski back in May demanding that the FCC take strong action to protect the Internet. This letter has been credited with bolstering Genachowski’s spine or what passes for it when it looked like he was going to cave in completely.
A few days ago Waxman proposed a bill which adheres closely to the Google-Verizon framework. Now it seems that the bill will fail to come up for a vote before the recess. In a statement conceding defeat, Waxman again called on the FCC to take action. Art Brodsky at Public Knowledge (who has written good stuff on net neutrality) interprets the whole weird incident as a Machiavellian ploy on Waxman’s part. He thinks Waxman really still does support net neutrality and was trying to put a scare into Genachowski by offering a glimpse of the kind of legislation which is bound to fill the vacuum if the FCC insists on leaving this void open.
To say the least, this kind of 11-dimensional chess interpretation runs counter to every other example we have of the way things work these days. To add to how bizarre this all is, the surface reason for the defeat of the Waxman bill is the “obstruction” of Joe Barton, whose reason for obstructing a bill the telecoms want closely tracks the same old telecom talking points: that any legislation regarding the Internet is a “government takeover” of the Internet.
But this is the kind of takeover AT&T, Verizon, etc., want to get behind. Waxman’s bill would enshrine the Google-Verizon paradigm of no regulation for wireless and a wired VIP lane to run alongside the existing fixed-wire Open Internet. What’s more, Waxman would explicitly forbid the FCC from regulating wireless or otherwise significantly upsetting the G-V Pact concept.
So the narrative we’re getting is that the crazy tea partiers have so internalized the telecom anti-“takeover” rhetoric that the Republicans are now obstructing even bills the telecoms actually want, because beyond a minimal threshhold the politics become way too nuanced for them. This is hard to credit. Although I’m sure Joe Barton is basically stupid, he certainly knows the difference between a bill supported by the rackets and a bill they oppose. So even if he’s getting lots of angry calls from yahoos, it’s hard to believe he’d listen to them over the demands of the rackets. (Ironically, that would be far closer to real democracy.)
So I don’t know yet what was up with the details of this nonsense. But the basics are clear. The FCC needs to do its job and either enact its “Third Way” or, far better, just reclassify under Title II. If it continues to refuse, one of two things will happen. Either Congress will do nothing, in which case the rackets will steadily, and probably sooner rather than later, gut net neutrality. Under the status quo, especially given this craven, inertial regulator, nobody’s going to resist discrimination even on the fixed lines, let alone wireless.
Or Congress will pass a bill enshrining something like the G-V Pact. Waxman’s bill was bad in concept and detail but probably represented the least bad it could be. So that’s where we’re at.
To end on a higher note, the other day I wrote about Leahy’s bill to set up a copyright blacklist and censor the Internet. This bill too has stalled out. So there at least we have a piece of evil temporarily thwarted. 


  1. Russ, I just got to the Rockefeller reference and have to tell you; it comes to mind every time he waffles on an issue.

    That he seems to be a very compromised man; that TPTB may have their hooks into him for some sexual indiscretions in Boulder back in the 1970s, and maybe others I know nothing about. A young woman lobbyist I knew who shared a Boulder house was involved. Its the kind of thing that ordinarily you wouldn’t think would effect a man’s career decades later; but these politicians are cowards. And I believe they are easily blackmailed by any evidence of sexual indiscretion TPTB have that they can hold against them.

    It is amazing what a punishing puritanical middle class we have in the US. It goes a long way toward explaining how TPTB have gotten away with drug prohibition enforcement policy for so long in spite of the extraordinary profits produced by it that enables government oppression all over the world.

    Now, back to reading your column.

    Comment by LeeAnne — October 1, 2010 @ 3:48 pm

    • He sure would have to be a coward to be worried about something like that, since as we know there’s no penalty even among Republicans for it, let alone Democrats.

      Thanks for linking to me at Naked Capitalism. I get quite a few more hits when you do that.

      Comment by Russ — October 1, 2010 @ 4:05 pm

  2. Not to nitpick an otherwise excellent post, but don’t you have the Peter Principle a little mistaken there? It would explain if he WAS incompetent… but if he’s knows what is right and

    Comment by jimmy james — October 1, 2010 @ 4:26 pm

    • Hi Jimmy, it looks like your comment got lopped off there.

      I’ve made the same Peter Principle reference to Genachowski before, in this post (and probably others):


      I described what I meant at greater length there:

      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 might 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.

      One of the manifestations of incompetence according to the Principle is being unable to make a decision, whether one knows what’s right or not, whether one wants to do it or not. And in this case Genachowski started out a year ago proposing rules which, while very imperfect, would have enshrined net neutrality in principle (and could have served as the foundation to build on; it would’ve been totally unlike say the health racket bailout which heads in a direction diametrically opposed to any solution). So he does know what’s right, sort of, and has intermittently taken action toward it, sort of. But then he keeps flip-flopping and taking evasive action.

      Comment by Russ — October 1, 2010 @ 5:13 pm

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