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Why Professor Crawford Has Title II Reclassification All Wrong

Recently the leading public voice of Title II reclassification of broadband, Harvard Law Professor Susan Crawford, assertedAll the FCC has to do is change their mind and say, ‘We got it wrong.’ [The FCC] has ample political congressional authority to do that, this is just a political battle. The FCC is concerned that if it acts to carry out this administrative relabeling, it will lose half its budget and half its staff.

The FCC did not get it wrong. Professor Crawford and supporters of reclassification have it all wrong.  

There are three key problems with Professor Crawford’s reclassification position:

  1. It trivializes reclassification as an “administrative relabeling;”
  2. It trivializes reclassification as “just a political battle;” and
  3. It ignores the plethora ofthings that the FCC would have to say it “got it wrong” and “changed their mind” about.

1.  Trivializing Reclassification as an “Administrative Relabeling”

It’s scary and misleading that someone could trivialize such a fundamentally-important, far-reaching, and highly-destructive, economic-policy recommendation as a mere “administrative relabeling” by a majority voting bloc of three unelected commissioners. 

Reclassifying broadband as a telecommunications service – is no more an administrative relabeling than transforming from being…

  • Innocent to being reclassified guilty;
  • Free to being reclassified captive;
  • User-driven to being reclassified government-controlled;
  • Lightly regulated to being reclassified as heaviest regulated; or
  • Privately-owned facilities to being reclassified as public utilities.

2.  Trivializing Reclassification as “just a political battle”

Arguably the single most radical FCC policy proposal in modern FCC history would be the reclassification of broadband as a common carrier. Let’s put it into perspective.

  • It would reverse a continuous and consistent, 43-year-long, FCC policy/precedent trajectory since the FCC’s 1970 Computer Inquiry I decision of separating data services from being subject to common carrier regulations -- in order to promote computer and data services innovation. (This uninterrupted policy trajectory spanned: 8 different FCC precedents over 36 years; 2 acts of Congress, and 2 Presidential actions that in turn, spanned 9 Presidential Administrations and 16 FCC Chairmanships.)
  • It would profoundly devalue $1 trillion of private risk-capital investment over the last decade and discourage future necessary private investment to keep pace with exploding demand -- by declaring effectively, that broadband companies should not invest, innovate, price, or compete based on consumer demand and competition, but should ask, and wait for, government permission before doing most anything new in their businesses.    
  • It would transmogrify the world’s most innovative, dynamic, and competitive broadband market with multiple, facilities-based, national competitors, into a government-mother-may-I, more-static, monopoly-regulated market.  
  • It would accelerate and abet the UN ITU Internet takeover effort led by Russia/China, by acting in the exact heavy-handed, interventionist way America has strongly urged other countries to refrain from.
  • It would create a legal mess of monumental proportions, because reclassification effectively is an all-or-nothing proposition. That means a company would go from not being subject to over a thousand common carrier obligations to being subject to over a thousand regulations, and consequently subject to a mind-numbingly complex and slow process of forbearing from basically one regulation at a time. That’s because the FCC is not Congress and it can’t do omnibus, immediate forbearance of Title II; it would have to forbear piecemeal over time, in an innumerable docket of separate forbearance proceedings over years.  
  • Lastly, it would politicize U.S. communications policy more than it ever has been. Most all of the major communications laws and FCC decisions over the last several decades (except for net neutrality), have been strongly bipartisan and NOT “political battles.” The FCC is an administrative agency and a creature of Congress; it is not Congress. Huge political issues like this are for elected officials to resolve.

3.  The plethora of things the FCC would have to say it “got it wrong” and “changed their mind” about.

The FCC would have to explain why and how the FCC was wrong when:

  • It decided in each of its three official Computer Inquiries over 16 years in: 1970, 1980 and 1986, that data services be separated from common carrier regulation in order to best promote innovation in computers and data services?
  • Congress, in the 1993 Omnibus Reconciliation Act, prohibited the FCC from treating cellular services as a Title II common carrier?  
  • It unanimously classified the following services an information service: cable modems in 2002; DSL in 2005; and wireless in 2007, based on different circumstances, technologies and fact bases?
  • It classified VoIP as an interstate service not subject to state common carrier regulation in 2004?
  • Clinton Administration FCC Chairman Kennard opposed applying common carrier regulation to broadband; and the FCC’s 1998 Report to Congress explained applying common carrier regulations to broadband “would be inconsistent with the deregulatory and pro-competitive goals of the 1996 Act?”
  • It unanimously rejected reclassification of broadband in its National Broadband Plan to Congress in 2010. (If reclassification of broadband as a common carrier service would promote deployment of advanced telecommunications capability to all Americans in a reasonable and timely manner -- why didn’t the FCC do it then?)
  • President Clinton ordered the privatization of the Internet backbone free of common carrier regulation in 1993; and decided in the Clinton Administration’s 1997 “Framework for Global Electronic Commerce” that: “Government’s should avoid undue restrictions on electronic commerce.”  

In sum, Professor Crawford and other reclassification proponents poorly serve the public interest by trivializing and misrepresenting the unprecedented magnitude, complexity, uncertainty, impact, and harm of reclassifying broadband as a common carrier service.

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Title II Reclassification Series

Part 1: FCC Reclassification is Eminent Domain, but with No Just Compensation or Authority [2-1-10]

Part 2: Title II reclassification: FCC can't redefine competition & not be arbitrary/capricious [3-4-10]

Part 3: Title II is no "solid legal foundation" for broadband [4-28-10]

Part 4: Why FCC faces such skepticism on Title II assurances [5-14-10]

Part 5: 5 BIG Implications from Court Signals on Net Neutrality - A Special Report [9-13-13]

Part 6: Video: Why FCC Title II Reclassification of Broadband is a Legal Non-Starter [9-22-13]

Part 7: Is Net Neutrality Trying to Mutate into an Economic Entitlement? [1-12-14]

Part 8: Cleland/Crawford Debate Common Carrier Regulation on WNYC Radio [1-14-14]

 

 

 

 

 

 

 

 

 

 

 

 

 

Q&A One Pager Debunking Net Neutrality Myths