NNSquad - Network Neutrality Squad
[ NNSquad ] Barbara Esbin replies regarding her paper
------- Forwarded Message From: David Farber <dave@farber.net> To: "ip" <ip@v2.listbox.com> Subject: [IP] Re: FROM Esbin -- NOTE DATE FCC Moves Closer to Regulating the Internet Date: Thu, 11 Sep 2008 12:30:41 -0400 Begin forwarded message: From: "Barbara Esbin" <BEsbin@pff.org> Date: September 11, 2008 11:37:21 AM EDT To: <dave@farber.net> Subject: RE: [IP] NOTE DATE FCC Moves Closer to Regulating the Internet Dave: I have been receiving my IP list messages in digest form, and learned of this post from some other list recipients who apparently got it last night. I am glad to you remembered to mark the 10th anniversary of the publication of my OPP Working Paper No. 30, "Internet Over Cable: Defining the Future in Terms of the Past." I had forgotten to mark the anniversary myself, but fully agree with your point about remembering history so that we may learn from it. I did find the contemporary write-ups of the Paper in the post below both interesting, from a historical perspective, and somewhat distressing in their apparent lack of understanding of the nature and point of my Paper: First, as the Working Paper clearly states, the views expressed were my own and "do not necessarily reflect the views of the Federal Communications Commission or any of its Commissioners or other staff." I cannot stress strongly enough that my Working Paper was not a "trial balloon" sent up by the FCC concerning its regulatory jurisdiction over the Internet. In fact, there was immediate consternation on the part of some at the highest levels of the FCC that the paper had been inadequately "vetted" before publication. I give a "tip of the hat" to both Bob Pepper, Chief of OPP, for recognizing the value of publishing such work, and for zealously protecting the ability of Working Paper authors to publish on controversial topics, and also to Chairman Bill Kennard for his willingness to let OPP function as the FCC's own "think tank." My "Internet Over Cable" Paper was intended to generate discussion about the important issue of how the agency should approach Internet services provided over cable networks under its governing statute. And I believe that it was a complete success in that regard -- it was both much discussed at the time and quite controversial. Second, I note that under the structure of the Communications Act, "definitional" questions are the key to answering whether and how the FCC should regulate such services and accordingly, the definitional questions formed the basis of my analysis, as they should have. Third, the Working Paper did not advocate particular outcomes: it demonstrated how the cable Internet service might or might not fit under various definitional categories, and discussed the regulatory consequences of such classifications, including the option of treating the Internet access offerings of a cable operator either as a "cable service" under Title VI or "as a separate, Internet access or on-line 'information' servic[e], governed not by Title VI, but subject only to the Commission's ancillary jurisdiction over 'wire communications' under Title I of the Act." (p. 89) This was a recognition of the FCC's "subject matter" as opposed to "regulatory" jurisdiction over Internet communications under Title I. (For a more recent analysis that discusses the lack of FCC jurisdiction to regulate by "adjudication" the network management practices of a cable Internet service provider, please see my paper entitled, "The Law is Whatever the Nobles Do; Undue Process at the FCC," at http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf). Ultimately, on the question of whether the cable Internet service should be treated as a "cable service," my 1998 Working Paper stated: "Whether the Commission should so classify these services is a policy question that can only be answered in light of an evaluation that persuasive policy goals exist in support of concluding such services to be cable services under the Act." (p. 90) The Working Paper concluded by recognizing the difficulty "of the task of sorting out appropriate regulatory categories in a world in which any carrier can offer any service over any transmission medium -- wired, wireless, cable, voice, data or video. It is increasingly likely that the above-mentioned regulatory categories painstakingly established over many years to further particular policy goals, must necessarily collapse of their own weight in the digital communications world of tomorrow." (p. 118) It closes by observing that the FCC and Congress "may need to develop a new regulatory paradigm and language that fits the new global communications medium known as the Internet." (p. 119) I believe this message still holds true. It is ten years later, and we appear to be little further along the road to updating and rationalizing fundamental aspects of either the Communications Act or the FCC's approach to "converged" Internet-protocol based voice, video and data services. Our domestic regulatory policy debate continues to be hobbled by the need to conduct it in the "terms of the past" rather than in accordance with the reality of the networks and services of today, let alone the needs of tomorrow's network, service and applications developers and providers. Barbara Esbin Senior Fellow & Director of the Center for Communications and Competition Policy The Progress & Freedom Foundation ____________________________________________________________________ From: David Farber [mailto:dave@farber.net] Sent: Wednesday, September 10, 2008 6:17 PM To: ip Subject: [IP] NOTE DATE FCC Moves Closer to Regulating the Internet Begin forwarded message: From: dewayne@warpspeed.com (Dewayne Hendricks) Date: September 10, 2008 7:13:39 AM EDT To: Dewayne-Net Technology List <xyzzy@warpspeed.com> Subject: [Dewayne-Net] FCC Moves Closer to Regulating the Internet FCC Moves Closer to Regulating the Internet <http://www.techlawjournal.com/internet/80908.htm> (September 8, 1998) The Federal Communications Commission released a lengthy report on Thursday, September 4, which suggests that the FCC ought to regulate Internet access provided by cable operators such as @Home, Road Runner, Cablevision, and MediaOne. This is the second major policy statement by the FCC this year that seeks to expand its regulatory reach from telecommunications services into computer and Internet services. 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. 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." The paper released last week is entitled "Internet Over Cable: Defining the Future in Terms of the Past: FCC Staff Working Paper on Regulatory Categories and the Internet." It was written by Barbara Esbin, Associate Bureau Chief of the Cable Services Bureau, in conjunction with FCC's Office of Plans and Policy (OPP). [snip] "Internet Over Cable" is 129 pages long. It can be viewed at the FCC website in PDF format: <http://www.fcc.gov/Bureaus/OPP/working_papers/oppwp30.pdf > RSS Feed: <http://www.warpspeed.com/wordpress> - ------------------------------------------- Archives: https://www.listbox.com/member/archive/247/=now RSS Feed: https://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com - ------------------------------------------- Archives: https://www.listbox.com/member/archive/247/=now RSS Feed: https://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ------- End of Forwarded Message