FCC needs to rethink broadband regulation

by Wally Bowen, Asheville Citizen-Times

Eight years ago on March 14, 2002, the five-member Federal Communications Commission voted 3-2 to weaken its regulatory authority over broadband Internet access via a cable modem.

The FCC press release that day predicted that the unusual move “will promote broadband deployment, which should result in better quality, lower prices and more choices for consumers.”

The vote split along party lines: Republicans, led by FCC Chairman Michael Powell, voting for; the two Democrats voting against.

The vote reclassified cable broadband from a “telecommunication” to an “information” service, thus exempting cable broadband access from “common carrier” obligations which have governed the nation's telecommunications since the days of the telegraph.

One of those obligations was allowing independent Internet service providers (ISPs) to re-sell cable broadband access. A decade earlier, common-carrier rules helped the Internet move from government and academic circles into mainstream American life by creating a market for independent ISPs to lease and resell dial-up access over the nation's telephone networks.

Michael Copps, one of two Democrats on the FCC, criticized the reclassification for “substituting our own judgment for that of Congress and playing a game of regulatory musical chairs by moving technologies and services from one statutory definition to another.”

Meanwhile, an ISP in Santa Monica, CA. called Brand X filed suit, and a federal circuit court struck down the cable broadband reclassification. The FCC appealed, and on June 27, 2005, the U.S. Supreme Court reversed the lower court in a 6-3 decision.

Reporting the “Brand X” decision the next day, the New York Times noted Justice Antonin Scalia's dissent: “[Scalia] wrote that the commission's ruling was trying to further a free-market agenda, through 'an implausible reading of the statute, and has thus exceeded the authority given it by Congress.'“ Justices Ruth Bader Ginsburg and David Souter joined Scalia's dissent.

The telephone industry immediately petitioned the FCC to “level the playing field” with cable by removing common-carrier obligations from its digital-subscriber-line (DSL) broadband service. On Aug. 5, 2005, a still-divided FCC concurred.

In the years since the FCC's reclassification of cable and DSL broadband, thousands of independent ISPs disappeared while cable and telephone companies gained control of more than 95 percent of all U.S. broadband connections. America's world ranking for broadband access, speed and cost fell sharply.

This is the context for the FCC – now with a 3-2 Democratic majority – as it moves to reassert authority over telecommunications granted it by Congress, reversing the commission's 2002 abdication of authority. Additionally, last year Congress ordered the FCC to develop a National Broadband Plan to address the growing disparities in broadband access, adoption, and affordability.

FCC General Counsel Austin Schlick notes that some of the plan's most important goals -- expanding broadband access for rural residents, Native Americans, the poor, Americans with disabilities, and small businesses; and strengthening public safety communications, cyber-security, and consumer privacy – cannot be implemented without the authority Congress originally gave the FCC.

But the cable and phone companies disagree. They have launched an intense lobbying effort on Capitol Hill, and they are funding corporate-friendly groups like Freedom Works and Americans for Prosperity to trumpet a “government takeover of the Internet.”

The stakes are high. The Internet's explosive growth – and the spectacular innovation it spawned – were enabled by common-carrier rules that still govern the nation's dial-up telephone networks.

Before 2002, online users were at the center of the Internet and World Wide Web, free to choose among competing ISPs, and free to roam and innovate. With the removal of common-carrier rules, the cable and telephone companies occupied the center of a broadband-driven Web, free to pick winners and losers among innovators (e.g. AT&T's exclusive iPhone deal with Apple) – and free to dictate when and where broadband access will be deployed.

In short, the definitive battle for the future of the Internet is underway. The cable-telco duopoly has huge advantages:

• Superior lobbying forces in Washington and every state legislature;

• Fake grassroots, or “astro-turf,” groups – plus Fox News and talk-radio allies – to denounce any government move to restore ISP competition and consumer protections;

• Commercial broadcast allies intent on retaining control of unused swaths of the public airwaves that could otherwise be used for wireless broadband expansion in rural areas;

• A complex issue requiring serious attention and debate, both scarce resources in a sound-bite society ruled by propaganda and sloganeering.

Unfortunately, the future of the Internet is being decided with professional journalism on life-support, unlikely to provide little more than superficial coverage. Adding insult to injury, a recent Supreme Court decision (“Citizens United”) granted full speech rights to corporations for unlimited media and campaign spending in federal elections, a sea-change not lost on members of Congress up for re-election in November.

Still, the frustration of rural residents and other underserved populations runs deep. Much of this frustration is centered in congressional districts represented by conservative Republicans and Blue Dog Democrats – and it comes at a time when distrust of big corporations is at an all-time high. Stay tuned.

Wally Bowen is executive director of the nonprofit Mountain Area Information Network (MAIN). He will present “Who Will Control the 21st-Century Internet?” at 7:30 p.m. July 1 at Jubilee Community, 46 Wall Street in downtown Asheville.

article originally published at Asheville Citizen-Times.

The media's job is to interest the public in the public interest. -John Dewey