Sascha Meinrath [twitter:saschnameinrath] is director of the New America Foundation’s Open Technology Initiative. He was also part of candidate Obama’s technology working group. I asked him why the FCC isn’t acting on Net Neutrality given that the President is so firmly committed to it.
Here’s an excellent article by Sam Gustin about Google, Verizon and the FCC with quite a bit of Sascha in it.
The FCC has launched a site for developers that provides APIsso that anyone can create apps that draw on FCC data. Heres the first one they list: “Over 1 million user speed tests were generated from FCC Consumer Broadband Test. This API delivers data on the number of tests, average user download/upload speeds, and more.”
The White House also launched Challenge.gov, an Innocentive-like site where government agencies can pose challenges, offering prizes for the best solutions. There are almost 50 challenges posted so far.
Harold Feld, who I consider to be one of the essential commenters on FCC issues, has written a “tough love” post, urging FCC Chair Jules Genachowski to take decisive action and lead the FCC. I agree. I think JG can do great things at the FCC. He should do them beginning now.
My hunch — and it’s nothing more than that — is that JG is trying to lead in the Obama-esque way: according each side its dignity and trying to find common ground. I support that when it has a possibility of working. I supported that even when it failed for Obama, because it was important to remind Americans that strong leadership doesn’t mean contemptuously disregarding those who disagree with you. But I also supported Obama when, after giving reconciliation a more than generous effort, he stood firm and acted.
It’s time for Genachowski to stand firm and act at the FCC. He has a vision for the Internet as a place where small voices speak and where new ideas get a fair chance. He understands the Internet as a potentially transformative force in culture, business, education, and democracy. He will not achieve his vision by compromising with those who view our Internet as their delivery channel for commercial content.
Jules Genachowski can have a transformative impact. It is far from too late for that. The Genachowski FCC can clear the way for the Internet — our Internet — to achieve its transformative possibilities for culture, business, education, democracy. I believe in Genachowski’s vision. I trust his intentions. I hope he will act.
Harold Feld explains the FCC “third way” reclassification decision. He goes into a moderate amount of detail, but this is perhaps the takeaway:
…I call this a “legal reset.” Basically, Genachowski is saying “Back in 2002, when we moved cable modem service (and later other forms of broadband access) into the Title I/information services/ancillary authority box, we thought we would still have authority to protect consumers and do other necessary policy things. The Comcast court told us we were wrong. So now we’re going to move broadband access service into the Title II/telecom service box. But nothing substantive/policy changes. We’re just doing what the DC Circuit told us to do by articulating a different theory of authority.”
The FCC has said it’s going to announce on Thursday a “third way” to regulate the broadband access providers to make sure that they leave the Net open and neutral. The first two ways are (1) to give up on protecting the Internet, or (2) to reclassify the Net as a communications network that counts as a common carrier (i.e., it has to let all bits go through equally, regardless of the app, origin, content, etc.).
The Washington Post headline of the AP story unfortunately reads “FCC to impose some new regulations on broadband,” thus reversing the actual meaning, which is expressed in the lead sentence: “Federal regulators plan to impose additional rules on broadband providers.” Big, big difference.
Anyway, this is a happier day than two days ago. For how happy, we’ll have to wait until Thursday’s announcement…
The Washington Post reports that FCC Chair Jules Genachowski is intending to give up on regulating the access providers – Comcast and the gang — leaving Internet users unprotected and at their mercy.
The Post implies that the Genachowski thinks of this as leaving “broadband services deregulated.” The problem is that that will also leave broadband unprotected. We need to regulate the providers of access so that they don’t get to regulate what we’re allowed to do on our Internet.
This is Chairman Genachowski’s chance to make a difference. That he would abandon the Net to access providers who have already shown that they don’t care about an open, free, innovative Internet is just about unthinkable. Unfortunately, as of today we have to add the “just about.” Let’s hope it’s just a trial balloon.
(Marvin Ammori has a worst-case scenario list of what unregulated access providers could do to the Net … except that almost all of the items are things they’ve already tried to pull.)
I was less depressed than I would have expected about yesterday’s ruling that the FCC does not have the authority to tell Comcast to let us do what we want with our Internet. In part, that’s because I was expecting to lose. In part it’s because this battle is far, far from over. There’s the possibility of an appeal (although the 3:0 decision seems pretty definite), Congressional action, or reclassifying the Internet. The third is the most interesting, although it has its own risks.
I am not a lawyer and I do not understand these things well, but this ruling could spur the FCC to make a simple change in how it classifies the Internet — it’s all about the classifications, people! — which would truly change the game.
So, pardon me (or better, correct me) as I get this wrong, but it all comes down to the various classifications that began with the 1934 Communications Act and were amended in the 1996 Telecommunications Act. The 1996 Act institutes a difference between “information services” (like the Net at the time) and “telecommunication services” like the telephone system. Information services include “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” i.e. the Internet. Telecommunication services transmit “information, without a change in its form or content,” i.e., the telephone system. Telecommunication services are considered “common carriers,” and are classified under Title II. Common carriers are not allowed to unjustly or unreasonably discriminate in their services, which is why you can use George Carlin’s seven dirty words in any !@$#%-ing telephone call you want. (I found David Johnson’s post on this helpful, but don’t blame him for my misunderstandings. Stephen Schultze also does an excellent and thorough job on these topics in a Radio Berkman podcast — highly recommended. Also, see Susan Crawford‘s concise explanation of yesterday’s decision.)
In 2002, the Bush FCC decided that if you get Internet access via a cable company, those services should not count as coming under Title II; cable companies are information providers, not telecommunication companies. The courts agreed in the 2005 Brand X decision, which meant the cable companies no longer had to provide wholesale access to ISPs the way telephone companies did under the obligation of common carriers to provide access to all without discrimination. That’s why around that time your choice as a user went from lots of small, competitive ISPs to one or two Big Name cable ISPs.
These classifications are troublesome — everything is miscellaneous, people! — because the Net is eating the other communications media; the Net now carries a good percentage of telecommunications traffic and doesn’t always run via the sorts of telecommunications the Congress envisioned in 1996. So, assuming that the FCC wants to regulate the Internet — and “regulate” here means to keep it free of the de facto regulation by those who provide access to it — it could reclassify broadband as the transmission of information (telecommunications, Title II) rather than as an information service that transforms information. This would make broadband a type of common carrier, preventing providers from discriminating against content they don’t like or discriminate in favor of their own content. There is, of course, dispute about whether the FCC has the authority to reclassify it this way (putting it under Title I, AKA “ancillary powers”), so “the FCC could” actually means “the FCC could and face legal challenges.”
Erik Cecil is among those who have posted very interesting comments on these issues. Erik maintains that, despite the pundits, it would be easy for FCC to reclassify broadband services under Title II as a type of telecommunications. He says the FCC already has a set of regulations about broadband (including requiring wiretapability under CALEA, and 911 VOIP access), and thus is already treating it as a Title II telecommunications service that moves bits without changing them. Public Knowledge, which has been active in pushing for Net Neutrality, also has posted about this.
My own, uninformed point of view? Classification for its own sake is a mug’s game, especially when we’re using categories such as “common carriage” that go back to the age of railroads. So, I don’t much care how broadband services are classified except insofar as it gets us to the social end that I want: maximal access to a maximally open and non-discriminatory Internet.
CEO of Verizon, Ivan Seidenberg, says “we will throttle”:
… the very, very high users, the ones who camp on the network all day long every day doing things that — who knows what they’re doing — those are the –
MURRAY: It’s video, right? I mean, it’s video.
SEIDENBERG: But those are the people we will throttle and we will find them and we will charge them something else.
Anyone want to print up some “Internet Camper” t-shirts
Yochai Benkler’s op-ed in the NY Times takes the Broadband Strategy Initiative to task for not requiring more competition among access providers. Well put.
I believe that Harold Feld would agree with Yochai, but he nevertheless has a somewhat sunnier spin on the report, perhaps because, as Harold explained elsewhere, he earlier on gave up on getting the plan that he actually wanted.
Harold Feld is one of my favoritist writers about the FCC, telecommunications, spectrum, and the whole enchilada. He has posted a piece that explains the intricacies of some recent spectrum policy announcements. It matters a whole lot.
This is not to say that Harold’s post is easy. It unpacks lots, but there’s lots packed in there. Skip to the first subheading for the Explainer part of the piece, and then keep going. And, bear in mind that Harold is partisan and admits it. Which I like. (I also find it refreshing when Brooke Gladstone in passing interjects where stands on an issue.)
