Larry Lessig: How Deregulation Failed the Internet

Harvard Professor Larry Lessig doesn't hold back a critique of the FCC for getting itself into its present broadband mess.

An April 6 federal appeals court ruling severely undercut the agency's powers to safeguard our access to a fast, affordable and free-flowing Internet. But the ruling is simply the product at the end of a long line of deregulatory miscues.

During a speech last week in Orlando, Lessig lays blame for this mess at the feet of the Bush-era FCC, which redefined high-speed Internet access with disastrous results.

Yes, policy reversals made under former FCC Chairmen Michael Powell and Kevin Martin have left our nation astonishingly far behind other developed nations. These countries chose not to abandon "open access" broadband rules inspired by the 1996 Communications Act and today deliver a faster, cheaper Internet to more of their citizens.

Yes, the Bush-era FCC gave over too much power to broadband incumbents, which soon moved toward "managing" the Internet in ways that undermined the open and people-powered culture of the Web.

But Lessig reserves his strongest critique for Obama's FCC - under Chairman Julius Genachowski - which weighed historical evidence in support of open access, and opted to ignore it.

Advice Ignored

The FCC had commissioned Harvard University to research broadband policies for one year. Harvard researchers concluded that open and nondiscriminatory networks foster a faster, cheaper Internet and a more competitive marketplace. All good for consumers. But this finding was unacceptable to phone and cable interests, and the FCC effectively buried the study.

Lessig plays a CSPAN clip, in which a top Genachowski lieutenant, Blair Levin, makes it clear that doing the right thing for the American public isn't a priority in a town where AT&T and Comcast's lawyers are still calling the shots. This is unsurprising, considering Levin hired as his top economist someone who has spent the last decade at coin-operated think tanks funded by the telcos.

Lessig devotes the first 26 minutes of his speech to a litany of deregulatory blunders both past and present. It's a stunning expose of the destructive power of industry lobbyists, and a defining argument for a return to the open standards that have served other countries so well.

Fixing This Mess

New York Times' editors underscored Lessig's point on Sunday when they called on the FCC re-assert its role as a consumer watchdog over 21st century communications:

Rather than seeing an explosion of new competition, the broadband access business has consolidated to the point that many areas of the country have only one provider. Broadband Internet has unbundled into a business with many unrelated information service providers vying for space on the pipelines of a few providers.

The Times concludes that "broadband access is probably the most important communications service of our time," one that demands an FCC that actually works on our behalf.

The good news is that more than 100,000 people agree -- and have taken the time since the court ruling to sign their name to letters urging the FCC to reclassify broadband access as it was originally intended.

If the FCC won't listen to history, perhaps it will listen to the present and a public demanding that the agency does the right thing.

 

Follow Timothy Karr on Twitter: www.twitter.com/TimKarr

Comments

[Stac77]

11:45 PM on 04/23/2010

How many times is the FCC going to reclassify the internet to get what it wants? While the FCC may have good intentions, obviously they can go awry. The DC Court was correct in its ruling against the FCC, because it does not have jurisdiction over ISPs. ISPs have managed their networks to give more bandwidth to larger content, thus creating smooth access for all. While unscrupulous practices can occur where ISPs block competitors or allow their own content to “cut in line,” broad, sweeping bans to network management is not the answer. Eliminating network management will eliminate speed and quality for end users. The FCC, if it ever gets jurisdiction, should try to find a middle ground, and above all analyze the long-term effects of “net neutrality.”

[K377]

03:52 PM on 04/23/2010

I am not convinced that classifying broadband access under Title II is the best way to achieve open Internet goals. Not only do I have concerns about the impact this would have on infrastructure investment and therefore adoption and innovation, but I also feel that we would be taking a step backwards. I personally do not want my Internet to model the common carrier system; I want it to be better. Any regulatory system of the Internet should retain flexibility to allow for innovation.

[Bwian]

09:45 PM on 04/22/2010

Brett Glass - Perhaps you have never read anything Lessig has written or any lawsuit he has defended in the last 15 or 20 years? Since the olden days before Google even mattered?

Lessig understands the absolute need for a free society to continue - net neutrality (yes this was the design in the original tc/ip computer code) must be restored in response to court rulings that have destroyed it over the past few years. And that network "social controls" exist in computer code way before they exist in any law. Before commenting ever again on anything Lessig - read the following:

The Future of Ideas http://www.the-future-of-ideas.com/
Code and other laws of cyberspace
http://www.code-is-law.org/
Free Culture http://www.free-culture.cc/

most of his books these days are creative commons licensed and can be downloaded for free.

The supreme court case Eldred v. Ashcroft, while lost, was a valiant effort to correct out of control copyright extensions and is worth reading in full.
http://en.wikipedia.org/wiki/Eldred_v._Ashcroft

Read his critics as well! Whoever they are.

After all that research, please come back and tell us about how Google is controlling Lessig - what a joke. Dude controls himself pretty well.

[Timothy Karr]

05:51 PM on 04/20/2010

Brett, You already know this. But since you insist on spreading conspiracy theories about who Free Press does or doesn't lobby for, it's worth repeating (as we have done for you multiple times already) that we take no money from industry, government or political parties. Our only alignment is with the public interest -- in this case that means making broadband access as open, affordable and widely accessible as possible. "Open access" has been shown to be a successful model. For that matter, I don't believe Google has come out explicitly in support of the broadband reclassification that would enable the FCC to protect Americans against content discrimination. We'd be supportive if they did. Elsewhere, we have been highly critical of the company -- most recently in regard to their CEO's hypocritical editorial at the WSJ. Check the record yourself.

[Jeffie Jeff]

10:57 AM on 04/22/2010

He leaves out the Anti-Counterfeiting Trade Agreement which does the exact opposite of net neutrality. I don't think he's all that good at research.

http://news.cnet.com/8301-13578_3-20003005-38.html

"One section of the proposed digital copyright treaty says that immunity from lawsuits would be granted to Internet providers "disabling access" to pirated material and adopting a policy dealing with unauthorized "transmission of materials protected by copyright." If the ISPs choose not to do so, they could face legal liability. "

[Maneesh Pangasa]

03:41 PM on 04/20/2010

A very good article. I agree with a number of its points. I am grateful to the Obama FCC for taking action on Net Neutrality and crafting its National Broadband Plan but share frustration with the Obama FCC's inaction. They are still accepting public comments on Net Neutrality meaning they have not made up their mind yet whether to implement rules (they favor some rules as does the President but are not acting) and the fact there still accepting comments and are having this workshop on open Internet issues on April 28th shows even if they are moving toward crafting rules they are taking too long to do it. We need rules now. The longer they wait the harder it will be to implement -- this is an election year in Congress and 2012 will be a Presidential election year again. We need action now not later. It will be harder later for them to act.

[Brett Glass]

03:35 PM on 04/20/2010

Interesting. Larry Lessig, as many people may not know, is a direct beneficiary of Google, Inc., which funded his Center for the Internet and Society at Stanford to the tune of several million dollars. Could this be why Lessig just happens to support "network neutrality" regulations, which -- contrary to their label -- are not neutral at all but rather would favor monoplist Google? Could it be why Lessig, who claims to be an advocate of consumer privacy, turns a blind eye to Google's massive invasions of privacy (including Doubleclick "spyware" cookies and the "Google Analytics" scripts which identify and track users as they visit Web pages -- including this one)?

Likewise, could the fact that the author of this posting, Tim Karr, works for an organization that lobbies for Google's agenda in DC have anything to do with the fact that his statements above are completely in alignment with Google's corporate interests and against the public interest? Hmmmm.