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Net Neutrality and the Third Way

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On May 6th, FCC Commissioner Julius Genachowski laid out a six-page plan for trying to make everyone happy in the net neutrality battle. It's a big question whether he will succeed.

A little background: In 2008, in response to a complaint by barbershop quartet aficionado and engineer Robb Topolsky, the Commission dinged cable provider Comcast for violating net neutrality protocols by choking Topolsky's peer-to-peer uploads. Small problem. The principal of net neutrality is not actually enshrined in any existing law or regulatory code. The courts caught up with this inconsistency two years later, and told the agency they didn't have the authority to reprimand the cable giant under the current set of rules.

This led to a bit of a dilemma. Should they change the rules? Or not?

We got to this fork in the road due to a decision about 16 years ago when phone, cable and internet all converged. Telephone companies, regulated under one set of rules, were offering hi-speed DSL connections. Cable companies, regulated under another set of rules, were offering hi-speed cable broadband. A regulatory mess loomed and lo and behold, there was a nice, clean solution. Or so it seemed at the time. Move all the hi-speed Internet services out of the regulated utilities category and into the new frontier of information services. In information services, broadband could bloom in the spirit of entrepreneurial innovation, market competition and the general glories of the free market.

It didn't really work out that way. Little ISP's withered on the vine, the US dropped out of the top 10 worldwide in broadband speed and affordability, and consumers started complaining about opaque network management practices by the big telcos. Evidence piled up about the failure of the marketplace to deliver the services we needed. Regulators to the rescue? Well, no. Oops.

Classification as information services -- where applications like Facebook and search engines like Google reside -- is basically regulation free. Title II -- classification as a utility -- where the Bells have operated for years -- is heavily regulated. What we have is Title I. What we need for net neutrality is Title II. Now there are some technical terms I could throw at you here; ancillary authority under Title I and forbearance under Title II. And if you're really interested, there are plenty of tech blogs that go into mind numbing detail. But in a nutshell, there are two choices; reclassify or leave things as they are.

Or so we thought. But along came a third way. Reclassify partially. Chop hi-speed internet services into sections and import into Title II the exact portions needed to do some very specific things and leave the rest in Title I. There are parallels to the biblical story of Solomon. Although the partition of broadband looks to be slightly less bloody then the division of that poor baby.

Is there wisdom in this tactical feint? Sure there is. What you want to say in Washington is, "See, I didn't give either side exactly what they wanted". The telcos didn't make reclassification go away. The public interest community kept it firmly on the table. The parts that are proposed to move will provide the necessary authority to institute net neutrality protections and reform the Universal Service Fund to subsidize lifeline broadband assistance. Yippee.

But the problems of today are not always the problems of tomorrow. By compromising on full reclassification, the FCC has tepidly empowered itself to look after the interests of consumers in only very specific ways. A host of potential issues including privacy rights, service bundling, consolidation of content and transmission in a corporate oligarchy, look to be conceded by this promise to forbear in advance. Do we want to sign away the regulatory rights of the future to get out of a sticky political wicket today?

As a public interest media advocate, much of the work focuses on mitigating the worst effects of bad decisions from the past, like the 1996 Telecommunications Act. Punting from behind, as it were. And surprisingly the ball gets to the twenty yard line more often than you would think. But that's no comparison to starting from a position of strength.

So thank you Mr. Genachowski, but speaking for myself, I'd wish you'd gone for the whole enchilada. While the regulators may forbear, I'm not so sure those you regulate will be quite so forbearing.

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