News leaked out earlier today to the effect that the FCC has decided to pursue a Title II regulatory program for the Internet, treating it in effect as if it were a telephone network. Others have called this approach “the nuclear option,” but I think it’s less severe, more like the 9/11 attacks on New York and Washington. Telecom lawyers will prosper from it, as a move of this kind is likely to take many years of court battles to squelch. Here’s a little discussion I had with a small circle of friends at the TechCrunch pad this afternoon.
13 thoughts on “FCC Regulates Internet, Film Here”
After all of this discussion, the current situation can be summed up in one sentence.
Google has achieved regulatory capture of the FCC.
Brett, I don’t think “Google won” in this dispute is the same as “regulatory capture”. Is there anything in the specifics of the current FCC proposal you believe is bad in particular? Note, specifics, not ideology about blather concerning regurgitate-the-utternuts.
Google has not officially “won” yet in this dispute, but given the partisan polarization and party discipline of the Commissioners, any proceeding including comments and hearings will be a mere “Kabuki dance” and the Commission will issue its Report and Order exactly as if it had received no input. Internet monopolist Google and its lobbyists appear to be calling the shots in every proceeding in which it has an interest. You’ll note, for example, that when the FCC’s “four principles” were rewritten for the “open Internet” NPRM, they were changed so as to specifically exempt Google and its worldwide fiber network, while explicitly prohibiting ISPs from selling the services that an upstart competitor to Google would need to get traction. And that the 700 MHz auction rules were rewritten to Google’s liking. And that when Google’s lobbyists asked the FCC for proprietary data that it wouldn’t even give out in response to an FOIA request, the Commission didn’t just reject the request; it OPENED A PROCEEDING — indicating that it was willing to violate the Trade Secrets Act to satisfy Google’s lobbyists. Not to mention the fact that Google’s chief lobbyist was hired by the Administration (despite its promise not to hire lobbyists) and was recently shown to STILL BE COMMUNICATING with his old lobbying staff from within the White House. So, we not only have regulatory capture of the FCC: we have inordinate political influence within the entire Executive Branch.
1) You didn’t answer my question
2) I caught this one straight-off “recently shown to STILL BE COMMUNICATING ” – that was false, there was no way to infer how old that contact list was, and whether it was an official business or just social.
1) Your question was an attempt to change the subject.
2) You think that McLaughlin just happens to communicate “socially” with every one of Google’s current lobbyists, as well as Tim Wu (chairman of Free Press, which lobbies for Google)? In that case, I have a bridge I would love to sell you.
By the way, for those who are reading and want background on this, see
Brett, you’ve made yourself irrelevant to the policy discussion by obsessing over Google to such a pathological degree. The issues are much larger than any one company, especially one with multiple interests in the debate.
You sound like a 9/11 Truther.
Richard, I am no means “obsessed” by Google. However, it IS important for the public to know just how it’s pulling the strings. Everything I’ve reported is well documented.Yes, there are other companies involved, but Google’s influence here is inordinate — as you yourself pointed out at least year’s Tech Policy Summit.
Meanwhile, back at the policy discussion: Brad Reed, Network World offers this “idiots guide to title II, the 6 sections”. His conclusion is long-term regulatory uncertainty is bad for business.
Except for the cost of impending litigation, I don’t think it’s bad for business or consumers. I think ISPs and networks will continue to evolve too quickly for any attempt to regulate. The only regulation is by consumers who ‘vote with their dollars’.
That’s a pretty fair summary. There’s a lot of ambiguity in the provisions of sections 201 and 202 when you translate from the telephone network to the Internet. The
* Section 201 relates to inter-carrier compensation, so this is price controls for transit and peering. The implications of applying this to the Internet are actually quite enormous, as the Internet has developed different inter-carrier compensation norms than the telephone network.
* Section 202 is about “unjust or unreasonable discrimination in charges, practices… or services,” which gets really interesting if you define “services” broadly enough to encompass things like VoIP, video streaming, and search. It’s actually a more restrained rule than the one the FCC proposed in the Open Internet rules, a ban on all forms of discrimination, not just bad ones.
While there is great ambiguity and uncertainty in how Title II might be applied in the long run, there is little ambiguity in how the three Democratic commissioners would like to apply it in the short run. They would like to seize sufficient authority AT LEAST to regulate the network management practices of ISPs, while pointedly NOT regulating the practices of content, application, and edge service providers such as Google (which, again, is one of the ways that we can see Google’s influence, because Michael Powell’s original “four principles” DID cover such providers). We can see this, for example, in the ex parte memo of Google lobbyist Gigi Sohn at http://fjallfoss.fcc.gov/ecfs/document/view.action?id=7020447269.
Regulation of network management practices in the way that political patron Google wants them to be regulated is the immediate goal, and the three Democratic Commissioners are unanimous in wanting to achieve it by any means possible — no matter how legally or politically tenuous. If it requires attempting to make new law — unconstitutionally — by cutting and pasting pieces of old ones in the style of a ransom note, so be it. If it requires making the completely absurd and unsupportable claim that the infrastructure of the Internet is “not the Internet” and that therefore asserting Title II authority would not be “regulating the Internet,” so be it.
The three Commissioners’ long term goals and outlooks differ, however. Michael Copps is the most honest of the three in that he bluntly states what all of us know. While the FCC may claim now to forebear from other regulation of the Net, this and future Commissions won’t hesitate to invoke more of Title II if, in the future, it finds other things that it would like to regulate. Copps urges the Commission to abandon the pretense that it can reverse 13 years of rulings, promises, and legal arguments in the absence of new facts or new law, and then make a binding pledge of forebearance that will somehow stick when all of these prior commitments didn’t. I agree.
In any event, here’s how things are likely to play out. The FCC’s reclassification proceeding will amount to a “Kabuki dance,” with comments from the public and from operators essentially ignored and a predictable 3-2 vote at the end. The proceeding will stretch into summer — perhaps right through Congress’ summer recess. Rule makings based on it will take even longer. And then — either when the rules are issued or when an attempt is first made to enforce them — there will be court challenges.
In the meantime, the President’s party will lose seats in both houses of Congress in the fall elections.
By the time the courts reject the Commission’s tenuous attempt to seize power over the Internet and it appeals to Congress to rewrite the Telecommunications Act, there will be partisan gridlock on the Hill.
The bad news is that tension between the parties will make the development of any new legislation slow going. Also, until new legislation is passed (and this could take a few years), regulatory uncertainty will dampen investment in broadband providers and undermine the execution of the worthy portions of the Broadband Plan. Also, wrangling over the legality of Title II reclassification will sap the Commission’s energy and resources, pushing more important matters aside. For example, the issue of “special access” has already been placed on the back burner, and at this rate may not be addressed for another full year. This is a tragedy and will greatly harm the public.
My ISP is not expecting to find outside investors at least until the end of the Obama administration, and this will hurt my community by preventing me from expanding my service to unserved and underserved areas that need it. The good news is that any new law that is passed will have to be a true bipartisan consensus.
This is the way things will play out if FCC Chairman Julius Genachowski proceeds on his current course. If I were a betting man, I would have to bet that he will. But as someone who actually cares about the future of this country and about getting people broadband, I wish he would reconsider heading down his current path, which is not a “third way” but rather a dead end from which he (and our country) will ultimately have to backtrack.
Right, Brett there is only one way to a third way, and it goes through Congress; title 2 is a dead end.
We agree. The only question is whether we go to Congress now or later.