When the U.S. Court of Appeals for the D.C. Circuit came out with its ruling today stating that the FCC exceeded its authority in slapping Comcast’s wrists for deliberately slowing Internet traffic for a few bandwidth hogs, a number of commentators predicted that this will touch off a flurry of activity from the FCC and, from those bemoaning the current dire state of the Internet, an attempt to get net neutrality back on track. And if the past year can be taken as prologue, they may get what they’re looking for.
The whole mishigas surrounds two of the core issues that have been around since Al Gore pressed the Internet’s ‘On’ button: Who’s in charge of this thing and When are they going to start ordering me around? As we can see from the unanimous decision handed down today, the answer to the first question is, Not the FCC. This comes at a very bad time for FCC Chairman Julius Genachowski, as the FCC has a number of net neutrality irons in the fire with the Open Internet Rulemaking and the National Broadband Plan, and this decisionthrows into doubt anything the FCC tries to do to promote net neutrality under its ancillary authority under Title I of the Telecom Act (i.e., also referred to as the “Because I’m the Mommy and I Say So” doctrine).
Unfortunately, due to the answer of the first question, the answer to the second question just might come sooner than we had expected. The FCC has been seen stroking its collective moustache thoughtfully as some commentators call on them to reclassify broadband service as a Title II communications service (like telephone service), so the commission can assert more authority over it. Of course, trying to shoehorn broadband into a 19th Century framework like telephone service would be disastrous for obvious reasons, and some not-so obvious reasons.
Right now network providers have an incentive to build out their network to new areas and offer new innovative services because they’re allowed to reap the benefits of their investments. Manufacturers benefit because they produce the fiber optic cable, the entrenching machinery and tools, the conduit, the servers, the software, and all the sundry nuts, bolts and widgets that go into constructing the vast network. Plus, as the network gets built out, manufacturers in more remote locations get access to high-speed services. Workers benefit because jobs are created, not only to make said sundry nuts, bolts and widgets, but in areas where broadband has been newly deployed.
However, if the FCC forces Internet service providers to act as old-school telephone companies, they’ll be burdened with old-school rules, like line-sharing requirements. These are the same regulations that disincentivized the telcos from creating new services. Why would anyone invest in massive capital expenditures when not only would they be unable to get the benefit of their investment, but their competitors would be able to piggy back on that investment? They wouldn’t. (Go here to find out why.)
In theory, a “neutral” net that forces everyone to be treated the same sounds benign, kind of like Switzerland. That reminds me of a line Orson Welles had in The Third Man:
You know what the fellow said – in Italy, for thirty years under the Borgias, they had warfare, terror, murder and bloodshed, but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love, they had five hundred years of democracy and peace – and what did that produce? The cuckoo clock.
Here’s hoping the FCC doesn’t try to turn the Internet into the world’s largest cuckoo clock.
Marc-Anthony Signorino is NAM’s director of technology policy.
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