Month: September 2014

Reliability Rather Than Rainbows — Why Title II Remains the Best Option for Net Neutrality.

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[Reprinting here a blog post published last week by my employer Public Knowledge.]

Recently, the Federal Communications Commission (FCC) published a blog post describing the “rainbow of policy and legal options” available to protect the open Internet, contrasting them to other “monochromatic options.” Reading this blog post reminded me of the quote apocryphally (and incorrectly) attributed to Winston Churchill:   “Americans will always do the right thing – after exhausting all the other alternatives.” While I applaud the FCC moving in the right direction on policy, I hope the FCC does not exhaust itself chasing the policy rainbow when the right thing – drab and monochromatic as it might be – continues to stare them in the face.

On the positive side, the FCC’s blog post reflects an understanding that the FCC’s original proposal from May, permitting paid prioritization (aka “Fast Lanes”) under a ‘commercial reasonableness’ standard will not do the job of protecting the open Internet. The political reality has also shifted, thanks to a tremendous public outcry in favor of recognizing that broadband is the essential service of the 21st Century, a fundamental service that everyone increasingly relies on and therefore – to use the legal expression – is affected with the public interest. Wheeler’s own writing on the network compact likewise recognizes this fundamental principle, which has made his resistance to embracing Title II and insistence on exhausting all other option all the more frustrating.

Judging by the FCC’s blog post, we have made progress since May. Title II has gone from a reluctant inclusion in response to public outcry to something “very much on the table.” But the FCC continues to look for something that will spare it the embarrassment of admitting the agency went down the wrong path ten years ago when it reclassified broadband as a Title I information service, and continues to be distracted by its bright shiny new Section 706 authority.

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I Summarize (Some of) My Net Neutrality Arguments in 15 Minutes

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Back in August, I spoke about network neutraliy as part of a panel the Federal Communication Commission (FCC) Consumer Advisory Committee. My opening 15 minutes hit most of what I think are the important (and often overlooked) arguments around network neutrality. Specifically:

1. In terms of real world experiments, the service that has never been Title II is cable television. The service that has always been Title II is wireless voice (or, as we telecom folks call it, “Commercial Mobile Radio Service,” (CMRS)). As we know, consumers loooooove their cable television provider more than any other service, and hate wireless as completely not innovative. Oh wait, other way around.

2. Net neutrality is extremely important for maintaining diversity of voices. Not simply the ability of commercial entities to compete on a level playing field, but the ability of anyone to speak without an intermediary. When we eliminate that, even with the best of intentions, we destroy something that makes the Internet special.

3. Title II is a flexible and well understood tool for protecting consumers, protecting diversity of voices, and protecting competition. Title I and Section 706 are a roll of the dice with our fundamental rights.

This is not a comprehensive list of arguments in favor of net neutrality by any means. I also recognize that “Harold Feld Talks For 15 Minutes About Net Neutrality” is probably the Worst. Clickbait. Headline. EVAR! But I hope some of you will find it useful and entertaining.

 

Stay tuned .  .  . .

The Comcast Witness Protection Program and Misplaced Rage.

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There is a style of article I find online occasionally that takes a classic work of film or literature and tries to flip your idea about who are the good guys and who are the bad guys, or vice versa. For example, this piece explaining why Glinda the Good Witch is really the villain of the Wizard of Oz and the Wicked Witch of the West is just an innocent woman wronged.

 

I thought of that when I saw recent pieces by Randolph May and Geoffrey Manne explaining how the Federal Communications Commission (FCC), by complying with its rules and doing its job soliciting input on the Comcast/Time Warner Cable from stakeholders scared to come forward for fear of reprisals, makes the FCC the bad guy and Comcast the innocent victim. Some of this concern seems to flow from a misunderstanding of the law. The FCC can’t act on anything outside the public record, so the concern that Comcast won’t get to make its case because of some body of secret evidence is groundless.

 

In addition – and this is why I’m particularly bitter here – Comcast set the precedent more than ten years ago for having the FCC look at stuff outside the public record as part of a merger review, and the D.C. Circuit affirmed it when I challenged it as a due process violation. So even if it did make a practical difference, the D.C. Circuit says it’s totally OK (at least when exclusion of evidence from the record favors Comcast).

 

Nor is this process so unusual as my Opposite Numbers (as I call my colleagues on the Libertarian side) believe. True, this is the first time the FCC actually listened to me (and others) and publicized the relevant FCC rules (although, as I explain below, I don’t think I actually had much to do with this). But this is also a rather exceptional merger. As for use of the relevant procedures, my experience is rather contrary to that of Randy May. I’ve not only urged the FCC to use (and publicize) the relevant procedures, I’ve invoked them.  Nor is it unusual for the FCC to solicit input from stakeholders.

 

Below, I offer an alternate perspective and deal with the various objections my Opposite Numbers raise for why they think the FCC shouldn’t be telling stakeholders afraid of retaliation to come in and speak off the record.

 

More below . . .

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