Wrong Way

The FCC’s “Third Way” rhetoric is especially interesting to ITIF because the notion that a third way was needed is something ITIF president Rob Atkinson and current Obama advisor Phil Weiser introduced in a 2006 paper. The rhetoric of the third way doesn’t align with the use of a Title II classification, however, because Section 202 has the simplistic “anti-discrimination” construction that’s telephone-specific. Packet-switched networks employ discrimination to do constructive things, so the policy issues are around the sale and transparency of discrimination as a service, not the mere fact of its existence.

The FCC is also usurping the Congressional role and defining its own mandate. See the ITIF statement:

The Federal Communications Commission, the government agency charged by Congress with regulating communications by air and wire, announced today a sweeping new program that goes far beyond its mandate. The FCC’s move is likely to lead to a lengthy and unnecessary legal battle, create needless uncertainty in the market, and detract from the FCC’s important work in implementing the recently unveiled national Broadband Plan. While the FCC is attempting to create a regulatory framework suitable for the ever changing Internet ecosystem, its proposal is tantamount to going duck hunting with a cannon.

This is a story that has become all too familiar. In the recent past, the courts have struck down punitive FCC orders against the Super Bowl “wardrobe malfunction” and on, April 6, an overwrought ruling against cable operator Comcast, who sought to preserve good Internet performance for those of its customers who use Voice over Internet Protocol (VoIP) services such as Skype and Vonage. This most recent example of FCC over-reach is a proposal that would take broadband Internet services out of their present status as lightly-regulated “information services” (Title I) and plunk them into a regulatory system devised for the monopoly telephone networks of the 1930s (Title II).

Read the whole thing.

6 thoughts on “Wrong Way

  1. As I’ve said in other comments, elsewhere on the Net: This is not a “third way.” It is a third rail. It will trigger years of lawsuits and regulatory uncertainty, followed (possibly several years later) by the rewriting of the Telecomm Act. In the meantime, the United States will lag behind other countries in broadband deployment and performance.

  2. > It will trigger years of lawsuits

    Brett, I’ve seen both you *and* Lauren kvetching about this, so it’s probably true :-). But, what possible *feasible* resolution to this conflict could there be, which wouldn’t result in years of lawsuits? There’s big money (very big money) on both sides, so whichever side loses is going to consider litigation as a business expense. Pushing it back to Congress just means lobbyists get the money instead of lawyers, and I’m not joking.

  3. Google couldn’t sue if the FCC simply dropped its drive to regulate the Net. I think that this is what it should do. It should then focus on the pro-competitive goals of the National Broadband Plan.

  4. Well, if one side simply concedes everything to the other, obviously then there’s no fight. But that’s a very trivial answer, and ducking my question.

  5. No, I’m not ducking your question. It’s perfectly feasible to drop the drive toward unnecessary and harmful regulation. It might take an epiphany on the part of the Obama administration, but such things have happened.

  6. Seth Said:

    “But, what possible *feasible* resolution to this conflict could there be, which wouldn’t result in years of lawsuits?”

    Come up with a Title III section of regulation that is built around data services.

    The fact that cable companies and phone companies both simply added data on as a toy feature (they still make more off of TV and voice) to their residential networks, it’s important to remember that these networks aren’t the best for data. The FCC fail circus-esque attempt to force data services under the old regulatory umbrella is most certainly stopping all investment in proper wireline data (Metro ethernet to the home) in just about every municipality, and leaves the poor Wimax operators floating in the wind.

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