Universal Broadband

For an FCC that so assiduously respected the integrity of process to produce a consensus National Broadband Plan just a few short months ago, how could this same FCC come to abuse the integrity of process in its pursuit of Title II net neutrality authority, just a few months later? 

• What's wrong with this picture?

How could the same FCC go from the predictable, open, consensus-driven process of developing the National Broadband Plan to the most unpredictable, closed, and non-consensus approach of the Title II net neutrality NOI? 

How can an FCC, which supposedly heard loud and clear from Congress about the importance of the integrity of process in confirmation hearings held just last year, completely ignore letters to the FCC from a majority of Congress imploring the FCC to respect the Constitutional process that empowers the Congress, not the FCC, with the authority to set communications policy for the Nation? 

Does not all integrity of process come entirely from respecting the Constitutional processes of separation of powers, due process, rule of law, equal protection, etc.?

How can the FCC maintain that they respect the integrity of process with the small "p" of the Adminstrative Procedures Act, when they disrespect the integrity of process with the large "P" of the U.S. Constitution and the Bill of Rights? 

What's wrong with this picture? 

• This FCC's apparent disregard for the integrity of Constitutionally mandated process.      

   

   

   

   

   

Often stepping back to gain perspective and to try and see the forest for the trees, can be highly instructive. However, if one steps back to see the big picture of how this FCC is attempting unilaterally to change U.S. Internet policy, the view is surreal.

• Increasingly, this FCC is becoming an island.
  • It is insisting on self-asserting its exceptionalism and its supremacy over the Internet; and
  • It is ignoring an overwhelming amount of important and contrary input, advice and evidence from Congress, the Courts, DOJ, FTC, past FCCs, industry, and the public. 
• Simply, this FCC increasingly appears to view itself as exceptional and as the supreme authority on and over the Internet, unconstrained by Congress, the courts, law, economics, markets, or the public.

Seventy-four House Democrats and thirty-seven Senate Republicans wrote letters (here, here) to the FCC today that essentially told the FCC that their announced plans to deem broadband a common carrier service are over-reaching and out-of-bounds.

• In Washington-speak, the letters communicated that the FCC is trying to decide an issue that is "above their paygrade" to decide. 

In turn, these letters appear to have prompted the Chairmen of the FCC's House and Senate authorizing committees and subcommittees to announce today that they will hold meetings with key stakeholders to discuss updating the Communications Act legislatively -- another strong message to the FCC that Congress makes communications policy, not unelected commissioners at the FCC.

The clear political message to the FCC here is that they have wrongly put the cart before the horse, and that they must seek a "solid bi-partisan political foundation" for U.S. broadband policy... before they can achieve their desired "solid legal foundation" for the FCC. 

There are many valid reasons why industry is highly skeptical of the FCC's many rhetorical assurances that nothing bad will happen from the FCC's planned regulation of broadband for the first time as a Title II common carrier service.

First, in response to the Comcast court decision, the FCC is hastily gambling away the benefits of broadband's proven "solid business foundation," in its longshot bet to win back an unproven "solid legal foundation" for the FCC.  

• The FCC apparently is ignoring that restoring the FCC's legal "status quo" comes at the expense of the broadband industry's long-time status quo of being unregulated and the consumer's status quo of enjoying the benefits of a market driven Internet "unfettered by Federal and State regulation."  
• Despite employing all the soothing words the FCC thinks the industry wants to hear, industry is much more interested in actions than words, as actions are what affect their businesses -- not words. 
  • Simply, industry is increasingly watching what the FCC does rather than what it says.
• The fact is industry is not reassured that nothing bad will happen to them, because the FCC has announced it plans to apply the most onerous foundational common carrier regulations on the broadband industry for the first time without any defensible justification or legal authority to do so. 

Second, the assertion that there has never been an instance of FCC "un-forbearance," is no assurance, because the FCC has never before reversed an entire sector's regulatory status before either. 

The Achilles heel of the FCC's announced "Third Way Legal Approach" for regulating the Internet is that it is simply not credible.

Incredible claim #1: The third way "does not involve regulating the Internet."

Kudos to Link Hoewing of Verizon Policy Blog for his excellent post systematically eviscerating New America's Foundation's fact-challenged attempt to argue that the U.S. is falling behind on broadband.

Facts are powerful and that's why net neutrality and Title II supporters like New America Foundation and their FreePress/Public Knowledge allies avoid facts like the plague.

The facts are overwhelmingly on the side that the U.S. is a world broadband leader.

The FCC is vastly understating the systemic risk involved in the FCC's radical "third way" regulatory surgery to the Internet, the communications sector and the economy.

• The FCC's proposed "third way" is an elaborate public relations facade that disguises huge problems and fatal conceptual/practical flaws that will become painfully obvious over time.
• The FCC's proposal is long on politics and soothing rhetoric, but short on real world practicality or legitimacy; it predictably will ultimately collapse under its own weight, complexity and hubris -- unfortunately leaving exceptional carnage in its wake.
• Simply, this proposal is too inherently contradictory and mind-numbingly complex, and too big not to fail.
• This analysis will explain why it is a disaster waiting to happen; it's not a matter of if, but when the "third way" will collapse on itself.

I.  Why this "third way" is a disaster waiting to happen:

The best way to understand what is going on here is to think of the Internet as a brain and the FCC's "third way" proposal as brain surgery to fundamentally rewire how the Internet brain operates at its most basic level.

FOR IMMEDIATE RELEASE

May 5, 2010                                                                                           

Contact:  Scott Cleland

703-217-2407

“There’s no Title I ½”

"The chairman of the Federal Communications Commission has indicated he wants to keep broadband services deregulated" reports Cecilia Kang of the Washington Post.

• If accurate, this is outstanding news.

  Keeping broadband deregulated is in the public interest because it: