[ NNSquad ] Re: Barbara Esbin replies regarding her paper

[Barry Gold <bgold@matrix-consultants.com>]

Barbara Esbin wrote:
> 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. 

An important point, and I thank Esbin for bringing it up.

 [snip]
> (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).


I read this, and came away somewhat confused.

I can't tell if Esbin is arguing that the FCC _should_ regulate Internet 
over cable, but should do it in a different (and fairer) manner, or if 
she has changed her mind and feels that the FCC should leave Internet 
over cable alone, along with other Internet services (which would have 
the advantage of consistency).  And if she has changed her mind, whether 
this arises from significant further study of the subject matter, or if 
she is simply working for a different interest now.

I had one other problem with this paper.  While the opening and closing 
are written in nice, clear English (including a Kafka fable, about as 
clear as Kafka ever gets), the internals are in regulatory-ese.  There 
is so much discussion of details of how various kinds of proceedings are 
 to be conducted, and why the FCC's ruling doesn't comply, that it 
almost (almost) begins to read like the arguments of some tax 
protesters, e.g., 
http://en.wikipedia.org/wiki/Tax_protester_statutory_arguments

This is not to say that I think Esbin's paper falls into that sort of 
nonsense.  Merely that it is confusing and partly gives that impression 
(to the layman).

Overall, I think I agree with the main thrust of Esbin's paper: that the 
FCC does _not_ currently have the authority to issue the ruling it did 
in the Comcast case.  And that before proceeding further in this or any 
similar case, the FCC should comply with the procedures for rulemaking 
(prior notice, specific types of hearings, etc.)

I also strongly suspect that the FCC simply _does not_ have the 
statutory authority to do what it has done, or even to make rules that 
would enable it to do so.

I think Congress should, after due consideration and (as usual) giving 
all interested parties a chance to comment (and to contribute 
bribes\\\\\\ campaign contributions), _grant_ such a rulemaking power to 
the FCC, within strict limits (to apply only to the cables/fibers and 
other physical infrastructures and not to the service built on top of 
those).  I recognize that this is a slow process and may take years. 
Nonetheless, I believe it is the right way to proceed in a country that 
is supposed to be governed by the rule of law.

During the past eight years, we have seen entirely too much of what 
happens when the rule of law is ignored for expediency.  I have no 
desire to see us go further down that path, even though I think the goal 
(Net Neutrality and/or increased competition at the "last mile") is 
laudable.  IOW, the ends, desirable as they are, do not justify the means.