In the last few days, both the New York Times and noted
digital activist Lawrence Lessig have joined the call for the FCC to
reclassify broadband, which would once again allow the government to
regulate the Internet in the face of hostile money-grubbing from big
phone and cable companies after a federal court denied
them that right a few weeks ago. It would also allow the FCC to
protect net neutrality and ensure the Internet is open for all, not just
for the rich.
By way of background, all the FCC needs to do to regulate the
Internet - the most important communications medium of our time and well
within the FCC's mission - is
reverse a Bush-era mistake:
Under intense pressure from phone and
cable companies, the Bush FCC chose to reclassify broadband as an
"information service" instead of a "communications service" that
provides strong regulatory oversight of traditional telephone
services. Problem is, the "information service" classification so
lacks the required regulatory authority, that the court just decided
the FCC can't do anything. University of Michigan's Susan Crawford
explains it in detail here.
The good news is that there is a simple solution. FCC Chairman
Genachowski must "reclassify" broadband as a "communications service."
The formidable phone and cable companies will fight tooth and nail to
keep that from happening, but the Comcast case has forced Chairman
Genachowski's hand: he must make the change. If not, the FCC has
virtually no power to stop Comcast from blocking websites. The FCC has
virtually no power to make policies to bring broadband to rural
America, to promote competition, to protect consumer privacy or truth
in billing. Bottom line: the agency has no power to enact the
much-discussed National Broadband Plan, released just last month.
FCC Chairman Genachowski has been forced into a corner, and he will
have to either stand up to the big companies and do the right thing, or
watch his legacy at the FCC wash down the drain.
All the FCC needs to do to correct this mistake is to hold a vote.
And given there are three Democratic members of the FCC to two
Republicans right now, the votes are thought to be there.
The backlash from these big
corporations, as you can imagine, will be intense. They'll be deploying
their army of lobbyists to pressure the FCC in closed-door meetings,
get corporate Members of Congress to sign business-friendly letters,
and contribute to the campaigns of politicians to win their support. As
one insider working for reclassification put it today, the lobbying
and pressure from telecom companies against reclassification "will be
like the fight over net neutrality times ten."
However, the path forward remains obvious. Reclassification is the
solution. On Sunday, the
New York Times got on board:
Fortunately, the commission has the
tools to fix this problem. It can reverse the Bush administration's
predictably antiregulatory decision to define broadband Internet access
as an information service, like Google or Amazon, over which it has
little regulatory power. Instead, it can define broadband as a
communications service, like a phone company, over which the commission
has indisputable authority.
The F.C.C. at the time argued that a light regulatory touch would
foster alternative technologies and aggressive competition among
providers. It assumed that the Internet of the future would be
dominated by companies like AOL that bundle access with other services,
justifying its conflation of access and information.
And it claimed that it could still regulate broadband access even if
it was classified as a service. All it had to do was convince the
courts that it was necessary to further other statutory goals, like
promoting the roll-out of competitive Internet services. This legal
argument did not hold up.
Any move now by the F.C.C to redefine broadband would surely unleash
a torrent of lawsuits by broadband providers, but the commission has
solid legal grounds to do that. To begin with, the three arguments
advanced by the F.C.C. during the Bush years have proved wrong.
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.
And most persuasively: broadband access is probably the most
important communication service of our time. One that needs a robust
Lessig got on board as well, with a characteristically powerful
presentation on the issue that gives the history and solution to the
problem. It's worth a watch:
The FCC is still considering its options. Which means they need to
hear popular support for reclassification now. It's great that the Times
and Lessig are on board. It's even better if you raise your voice.