The Tea Party/Libertarian/Generally Anti-Net Neutrality Crowd were dancing in the streets after the network neutrality oral argument and declaring total victory! This seems not only premature, but short-sighted. Until the oral argument, the anti-net neutrality crowd had predicted that the court would utterly reject the FCC’s efforts to extend its authority to broadband access on either statutory or First Amendment grounds. But, as I noted previously, the entire panel seemed comfortable with Section 706 providing some level of authority over broadband access. Also, no one seemed terribly interested in the First Amendment argument except Judge Silberman. So – given the usual caveats that one can never really know how things will come out after oral argument – it seems the FCC will come out of this with some authority after all.
OTOH, it is certainly fair to say that two of the three judges on the panel indicated the “Common Carrier Prohibition” (aka, the thing Tatel made up in the Data Roaming Case) applied to at least the “no discrimination” rule and possibly the “no blocking rule.” As the two together constitute the heart of network neutrality protections, getting those struck down would certainly constitute a big win for anti-net neutrality folks. It would also create a fine muddle of confusion around the scope of the FCC’s overall authority.
There are, however, a range of possible options and outcomes that could still happen, ranging from the unlikely extreme of total affirmance for the FCC (if Rogers persuades one of her colleagues) to total reversal on some other grounds (if Silberman persuades one of his colleagues on First Amendment or Administrative Procedure Act (APA) grounds). I explore these (and what they might mean for the long term) below . . . .
In an article called “Why Verizon and AT&T Are More Innovative Than ‘The Left’ Thinks,” Economist Jeff Eisenach makes some observations on his ascendancy to head the American Enterprise Institute (AEI) new Center For Internet, Communications and Technology Policy. Among these, Jeff says that I would attribute Comcast’s effort to block BitTorrent back in ’08 as motivated by a desire to leverage their broadband market power to protect video. “That’s the story Harold Feld would apply to Comcast and BitTorrent. I think it’s far-fetched to believe that Comcast thought BitTorrent was a competitive threat.”
Except, of course, I said exactly the opposite in this blog post back in 2008 when Comcast filed its full disclosure document with the FCC. What I actually said was: “it appears to me that Comcast did not block P2P for anticompetitive reasons.”
This did not, of course, make Comcast’s conduct acceptable. As I went on to explain:
“Rather than invest in upgrading its network, Comcast opted for the cheapest solution from its perspective without waiting for significant congestion to occur. It used the Sandvine equipment to block (“delay”) P2P transfers and (according to the Florida AG) targeted the top 1000 users per month, no matter what capacity these users actually consumed. This provided an effective means (from Comcast’s perspective) for managing potential congestion, even if it sucked rocks from a consumer perspective.”
While I like Jeff, this does not look like the sort of rigorous research one would hope for from a scholar of Jeff’s caliber and AEI generally – if they want to be taken seriously.
This brings me to my broader point. While I’m flattered that Jeff Eisenach regards me as the face of the ‘Left,’ and I enjoy the opportunity to tweak him over this, it highlights a broader problem among neo-conservative economists (or, as we might generalize, the ‘Right’). They have stopped listening to people who disagree with them. As a result, they keep saying the same thing over and over again – largely to each other and their Republican groupies.
One of the more common and frustrating problems in Policyland is when a debate over something vital and important gets hijacked for broader agendas. Or, as we call this in Washington, any day of the week on any issue.
Case in point, AT&T’s much debated proposal to do some form of trial or pilot program (or series of same) to move forward as part of AT&T’s plan to upgrade its networks from traditional TDM-based copper to VOIP in some spots and to retire copper in favor of wireless only in other places. This debate over whether to conduct trials has become the proxy war for AT&T and its allies who want carte blanche to move forward with the conversion without much regulatory supervision (and use the conversion to eliminate most regulatory oversight) on the one hand, and those who see the the conversion of the PSTN primarily as a bid by AT&T to eliminate all regulatory oversight on the other.
The problem with the usual fun and games is that, as anyone following the Fire Island Voice Link Debacle should realize, this is much too important to play around with the usual fun and games. This stuff needs to actually work. Meanwhile, FCC Staff, who are actually doing their job, get crapped on by both sides as either standing in the way of progress by moving too slowly or being handmaidens to AT&T for moving at all.
At long last! After nearly 3 years, a panel of the Federal Court of Appeals for the District of Columbia Circuit (or, as we legal folks abbreviate it, the D.C. Circuit) heard oral argument in Verizon’s appeal of the FCC’s “network neutrality” rules. And believe me, after spending the month of August refighting the same annoying retransmission fights of the last 10 years, there is nothingI wanted more than to sit for two hours watching other people re-arguing the same arguments around network neutrality that we have argued for the last ten years — it’s like Groundhog Day for policy wonks.
You can listen to the 2+ oral argument here. I have a shorter and less snarky summary on the PK Blog. But for you fellow telecom wonks who want the gory details with a healthy side order of snark directed at Judges Tatel and Silberman, see below . . . .
As regular readers know, Verizon and I have had considerable differences about Verizon’s plan to replace the copper phone network on Fire Island destroyed by Superstorm Sandy. Today, Verizon acknowledged that customers do not find Voice Link an adequate substitute for traditional copper-based phone and DSL. Verizon will deploy FIOS to Fire island by next Memorial Day, offering voice and broadband (but not TV — everyone on Fire Island already has satellite and offering cable programming would seriously drive up the cost). Verizon will continue to offer Voice Link as a less expansive alternative for those who want it.
In the category of lessons that might actually stick, however, I will note once again how critically important having a state commission providing oversight and the Federal Communications Commission (FCC) providing oversight proved to be. Without these important public forums to provide a focus for these complaints, and without the threat of regulatory backlash, no one would have any reason to believe that customers were unhappy and Verizon could have simply forced them to take whatever it wanted to provide. Instead, people stood up for themselves and forced Verizon to respond.
OK, Fine. I admit it is actually a pro-Net Neutrality movie (like y’all couldn’t figure that out! Work with me here, OK? I’m trying to meme!) But it is a fun piece that explains why those of us who care about network neutrality care. (Those of you who think net neutrality is the work of Satan are unlikely to be persuaded.)
Since we can’t film today’s oral argument in front of the D.C. Circuit, this half-hour video can update you on the issues instead. Enjoy!
Here’s a four-minute video that chronicles — in a not strictly chronological order — the building of the new San Francisco-Oakland bridge.
Yes, I know the bridge is 24 years late and billions over budget, that many parts of it were made in China, that the story of its building includes lots of venal politics and outright corruption.
But damn, it’s a beautiful accomplishment! Just imagine if we had done projects like this all over the country since the Big Motherfucking Ratfucker-Bankster Implosion (BMRBI) began in 2008! Imagine if we were ruled by decent people instead of “austerity is the answer for everything” knaves & eunuchs (a phrase I borrow from Ezra Pound, btw). Imagine if we put as much love and passion into building our country as we put into blowing up other peoples’ countries!
Ah, well, I’ll get back to gloom and doom in a little bit. For now just dig the video and marvel at what human people can accomplish when we work together.