FCC Broadband Coordinator Blair Levin described the crux of the National Broadband Plan in testifying before the Commission 7-02 as "identifying where there are currently 'demonstrable public interest harms.'" That central task is essentially defining the problem(s) and is necessary to complete the last task of the plan: "identifying ways to lessen those public interest harms," or recommending solutions. Defining the problem largely defines the range of recommended solutions.
- The plural use of "harms" here suggests that the Plan could end up "identifying" more problems than the obvious core problem prompting the Plan -- that not "all people of the United States have access to broadband capability."
Levin's choice of a classic organizational structure, background-problem-solution, is a wise, useful, and simplifying approach for such an exceedingly complex endeavor.
- I also commend Blair Levin for setting a high bar for defining the problem, "demonstrable public interest harms," because it suggests it limits the potential for less than fully-justified FCC recommendations.
- "Demonstrable" means "capable of being demonstrated or proved; clearly evident and obvious."
- "Harm" means "physical or psychological injury or damage; wrong; evil."
- In a sense, demonstrable harms could be a good proxy for the "public interest" here.
I. The Statutory Context for the National Broadband Plan
Given that Congress did not repeal any of the laws that the FCC operates under, it is important to note that the FCC's National Broadband Plan is not a blank slate. Congress' statutory authority and direction granted to the FCC remains fully operative until it is changed in law. Moreover, Congress did not ask the FCC for recommendations of laws that need to be changed indicating that the Plan operates under existing law and authority.
- In that context, it is then particularly instructive to remember the statutory language that describes the purposes for which the FCC was created:
- Title I, Section I of the 1934 Communications Act as amended: "...communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication..."
- It is also instructive to remember the statutory language that describes the additional statutory purposes in the most significant modern-era update to the Communications Act:
- The Telecommunications Act of 1996: "To promote competition and reduce regulation in order to secure lower prices and higher quality services for American telcommunications consumers and encourage the rapid deployment of new telecommunications technologies."
- And given that the Plan is being done in concert with a Section 706 update, per Blair Levin, it is also important to remember the highly relevant statutory language of Section 706 to a National Broadband Plan:
- "In the inquiry, the Commission shall determine whether advance telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market."
II. Candidates for "Demonstrable Public Interest Harms"
First, the continued lack of an interoperable public safety network to allow our first responders, fire fighters and law enforcement to efficiently and effectively communicate and coordinate via broadband services to save lives and property, after attacks like 9-11 and hurricanes like Katrina in New Orleans, remains the most "demonstrable public interest harm" for the FCC Plan to address."
- It would be hard to imagine a National Broadband Plan that does not identify the long-unaddressed, high-consensus, urgent priority of interoperability for our first responders, fire fighters, and law enforcement as one of our nation's most "demonstrable public interest harms" to address most expeditiously.
Second, our Nation's lack of adequate cybersecurity is another highly "demonstrable public interest harm."
In his Cybersecurity Address 5-29-09, President Obama said:
- "This new approach starts at the top, with this commitment from me: From now on, our digital infrastructure -- the networks and computers we depend on every day -- will be treated as they should be: as a strategic national asset. Protecting this infrastructure will be a national security priority. We will ensure that these networks are secure, trustworthy and resilient. We will deter, prevent, detect, and defend against attacks and recover quickly from any disruptions or damage."
- "In short, America's economic prosperity in the 21st century will depend on cybersecurity." ..."It's about the privacy and economic security of American families." "...this is also a matter of public safety and national security."
From the White House Cyberspace Policy Review:
"The digital infrastructure’s architecture was driven more by considerations of interoperability and efficiency than of security. Consequently, a growing array of state and non-state actors are compromising, stealing, changing, or destroying information and could cause critical disruptions to U.S. systems."
In short, while security may have been an afterthought or a lower priority for the Internet before, President Obama has made it clear that cybersecurity threats are a "demonstrable public interest harm." In other words, if the broadband Internet/cyberspace is not safe and secure, other Internet priorities/benefits cannot be achieved.
Third, given that the FCC's original statutory purpose includes "promoting safety of life and property" and given the fact that the broadband Internet has helped facilitate widespread and massive digital theft of intellectual property via p2p applications, I will be surprised if the IP community cannot make a persuasive case to the FCC that current mass digital IP theft is a "demonstrable public interest harm."
Fourth, anything that would prevent reasonable network management to maintain a reliable broadband Internet infrastructure for communication and commerce would be another "demonstrable public interest harm."
- Any actions that would prevent broadband providers from being able to mitigate denial of service attacks, viruses, worms, spam, zero-day-threats, and other malware, and manage network congestion would clearly undermine the necessity of reasonable network management.
- Simply, reliability is a demonstrable prerequisite for fulfilling the fourteen purposes Congress enumerated in its call for a National Broadband Plan: "
- "advancing consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation and economic growth, and other national purposes."
III. What Doesn't Make the Cut for "Demonstrable Public Interest Harms?"
First, a lack of formal net neutrality rules or legislation is not a "demonstrable public interest harm" because:
- Industry has committed to, and is abiding by, the FCC's Broadband Policy Statement;
- The FCC has a working process in place to oversee potential problems with the statement if and when they arise; and
- Existing antitrust law already addresses the crux of most net neutrality concerns.
FreePress/SaveTheInternet's many claims of potential net neutrality/open Internet "harms" simply have not been demonstrated or proven.
Second, claims that new broadband regulation is needed because competition is unable to protect consumers and promote innovation is not a "demonstrable public interest harm," because it completely contradicts the purpose of the 1996 Telecom Act and numerous FCC precedents.
- At core, most of the claims by activists that markets or practices are anti-competitive, are really "stalking horse" opposition to current competition law and policy, and advocacy for common carrier regulation of broadband as if it were a monopoly and not a competitive market.
While proponents of more regulation of competitive broadband competitors have asserted market failure they have yet to prove it, and even if they were able to determine that a certain market segment exhibited market failure, an exception does not make a rule. In the absence of "demonstrable" market failure, competition policy remains the law and policy of the land.
In closing, the FCC will remain on the right track with the National Broadband Plan to the extent that it continues to define the problem(s) it believes need to be addressed as "demonstrable public interest harms." That high bar will ensure that the plan will enjoy broad consensus and avoid divisive political issues that can not be proven on the merits with data and facts.
- The National Broadband Plan is simply too important to allow it to be hijacked by alleged "problems" that are neither demonstrable nor harms.