[ NNSquad ] Re: NOTE DATE FCC Moves Closer to Regulating the Internet

[Brett Glass <brett@lariat.net>]

Tech Law Journal wrote (in 1998):

> The Congress, courts, and until
> recently, the FCC, have held to a  
> distinction between "telecommunication services" and
> "information  
> services" (also referred to as "basic" and
> "enhanced," respectively).   
> The former are subject to FCC regulation -- the latter are not. 
> The  
> FCC maintains in this Report that it still adheres to this
> dichotomy.   
> However, it seeks to redefine certain information services as  
> telecommunications services.

In fact, the FCC and the courts have in the past decade gone the other
way, redefining many "telecommunication services" as
"information services." (Some would say that they have gone too
far in this regard by claiming, as in the Brand X case, that access to
essential facilities -- that is, telecommunications infrastructure which
is infeasible to duplicate -- is an "information
service.")

> The Report argues too that with
> technological convergence "it will  
> become increasingly difficult to maintain that particular
> facilities  
> are 'cable' as opposed to 'telecommunications'."  And because
> of this,  
> existing "regulatory categories," claims the Report, "must
> necessarily  
> collapse of their own weight in the digital communications world of 
> tomorrow."

While the FCC report does recognize convergence, it does not -- contrary
to the impression given by this article -- does not advocate regulation
of the Internet. In fact, it says:

"The challenge for the regulator, at each step, is to examine the
underlying purposes and policy goals behind existing regulatory
categories, and to apply them only where those purposes and policy goals
make sense.  Any regulatory efforts in this arena should begin with
an analysis of whether the operator in question exercises undue market
power over an essential service or facility necessary to provide an
essential service."

Barbara Esbin, the author of the 1998 FCC report, has recently argued
that the FCC, by attempting to regulate and micromanage ISPs and the
Internet in its recent Comcast order, has exceeded its authority and may
be in danger of becoming a "runaway agency." In her white paper
titled
"
The Law is Whatever the Nobles Do: Undue Process at the
FCC" at

http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf

she says, 

"The FCC?s action highlights a greater problem. Now that the FCC has
asserted its authority to regulate Internet provider broadband network
management practices, the question arises, "who will regulate the
regulator?" This is not an idle inquiry, but rather an urgent
problem.  For apparently what we have on our hands is a runaway
agency, unconstrained in its vision of its powers and unconcerned about
the serious reservations expressed by the current Administration and
members of Congress. As dissenting Commissioner McDowell stated:
"Under the analysis set forth in the order, the Commission
apparently can do anything so long as it frames its actions in terms of
promoting the Internet or broadband deployment."

Her paper, and the arguments in it, are well worth reading.

--Brett Glass