Eleven years of legal uncertainty!

One of the biggest reasons NN would be a disaster to implement is that no one can define it --meaning it would be left to the courts to do so -- which can take eleven years! Late last week the DC Court of Appeals finally upheld for the first time the FCC's unbundling rules stemming from the 1996 Telecom Act. It took the FCC four attempts over eleven years to craft rules implementing the 1996 Telecom Act's unbundling rules.

Why is this a big issue for NN? First the House Markey and Snowe-Dorgan bills were drafted very similarly to the section 251 of the Telecom Act, which created so much legal uncertainty.

Second, court challenges tend to focus on legal definitions because it is definitions that determine who and in what instance the regulations apply. Definitions matter most to courts because they have to adjudicate the facts to decide if a particular entity would fall under the law.

Third, convergence naturally scrambles definitions. The FCC ended NN because it ruled that cable modems and DSL did not fit the definition of a regulated telecom service but fit the definition of an un-regulated information service. Here's a fun one. How would you define "Click to Call?" Would Google's click to call be a broadband service? Convergence makes these definitions really hard. The FCC's unbundling rules are only the most recent and glaring example of this truth.

Thus in order to capture what they want, the NN have had to draft hugely expansive language in the Markey and Snowe-Dorgan bills, which has such broad definitional reach as to apply to everything that carries ones and zeros, even clearly competitive services like wireless, even free services like WiFi and every new broadband entrant the couldn't possibly have market power becuase they have don't have any customers!

NN proponents need a dose of real world implementation reality and humility. The Markey and Snowe-Dorgan bills are as unworkable as they are unnecessary.