{"id":9280,"date":"2010-04-26T20:41:00","date_gmt":"2010-04-26T20:41:00","guid":{"rendered":"http:\/\/www.publicknowledge.org\/uncategorized\/no-houdinis-needed-fcc-should-take-direct-way-to-broadband-authority\/"},"modified":"2025-01-08T23:04:43","modified_gmt":"2025-01-08T23:04:43","slug":"no-houdinis-needed-fcc-should-take-direct-way-to-broadband-authority","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/no-houdinis-needed-fcc-should-take-direct-way-to-broadband-authority\/","title":{"rendered":"No Houdinis Needed: FCC Should Take Direct Way to Broadband Authority"},"content":{"rendered":"

There is no lacking for clever minds at the Federal Communications Commission (FCC).\u00a0 They have all sorts of bright lawyers and economists and the like working on trying to make some sense of the world of telecommunications in all its glory.<\/p>\n

Last time we checked, however, they didn\u2019t have any escape artists on staff.\u00a0 Unfortunately, that\u2019s what they will need to try to get away from the restraints put on the Commission by the U.S. Appeals Court, D.C. Circuit in the now famous case involving Comcast\u2019s throttling of BitTorrent.<\/p>\n

The Court found unanimously that the way the FCC enforced its policy statements for an Open Internet under a general part of the Communications Act (Title I) wasn\u2019t legal, and that some of the other sections of the law didn\u2019t pass muster, either.\u00a0 It was a pretty strong opinion as these things go.\u00a0 It was crucial because everything that the FCC wants to do to proceed with its broadband strategy is dependent now on questionable legal authority as a result of that court ruling.<\/p>\n

As FCC General Counsel Austin Schlick wrote a lot of the big ticket items in the National Broadband Plan are dependent on the FCC having the authority to move forward.\u00a0 What\u2019s at stake?\u00a0 Schlick put up the list: \u201cAmong them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.\u201d<\/p>\n

Now the Commission has a couple of ways it can move forward from here.\u00a0 More and more it\u2019s looking as if the clever minds are trying to find another way to assert their jurisdiction under Title I, or under another section of the Communications Act (other than Title II).\u00a0 No one has said anything publicly, but it\u2019s what they haven\u2019t said that\u2019s giving people pause. FCC Chairman, Julius Genachowski has said he thinks the FCC has the legal authority to proceed on broadband, but he hasn\u2019t yet articulated publicly what he thinks that will be.<\/p>\n

The big telephone and cable companies would be all right with that approach.\u00a0 They have said that the Title I construct is just fine with them \u2013 until it isn\u2019t.\u00a0 They will say the right things in general and take the Commission to court every time on the specifics of any given policy.<\/p>\n

That\u2019s the warning Public Knowledge issued to the Commission in our reply comments in the Open Internet proceeding.<\/p>\n

You can try the Title I route all you want, and the carriers will say they are behind you \u2013 except when they don\u2019t like what the Commission has proposed.\u00a0 Our comments noted the comments of Comcast in one instance, and the National Cable and Telecommunications Association (NCTA) in another, making that very point.\u00a0 We couldn\u2019t have been more blunt with the FCC:\u00a0 \u201cEven the same parties who, before any specifics are proposed, are happy to suggest that the FCC may have the ancillary authority to act in their favor on broadband matters may nonetheless challenge any specific FCC action they dislike.\u201d<\/p>\n

In other words, try to find the squirrely, clever way around the court decision, and you are just asking for trouble.\u00a0 You are trying to placate people who can\u2019t be placated and who will cause you trouble endlessly.\u00a0 Even if you win one, the Commission will only have won a partial victory on one point of a Broadband Plan, or one piece of a policy.\u00a0 Every other one will have to be fought out.<\/p>\n

As PK put it in our comments: \u201cBut if the FCC fails to ground its legal authority more firmly going forward, it can expect challenges to its authority each time it tries to update its regulations to reflect the new broadband-centric reality. The public deserves better than this legal brinksmanship.\u201d<\/p>\n

There is another way, and that\u2019s to confront the issue directly, take the fight on once and be done with it.\u00a0 FCC Commissioner Copps appeared recently on Bill Moyers\u2019 program<\/a> and was typically blunt about the need for the fight to be fought.<\/p>\n

Copps talked about the landscape: \u201cI don’t think we have telephone companies and cable companies and all this. We have broadband companies. And they’re all in there competing with one another. They’re all looking for control of the distribution. Now they’re looking for content. All the recipes for monopoly and duopoly that we have seen throughout our history.\u201d<\/p>\n

Then, there was this exchange (from the transcript of the show):<\/p>\n

\u201cBILL MOYERS: How threatened is the whole idea of an open Net?<\/p>\n

\u201cMICHAEL COPPS: Oh, I think very. I think very. I think there are powerful players that are opposed to it. Are in a position to make their influence felt. None of these things are going to come easy. We’ve just been through the health insurance debate. We’ve got the financial debacle. None of this stuff gets solved without taking on taking on a fight. The government doesn’t work that way. You’ve studied this history; I’ve studied this history. It’s painful, it needs movements, it needs grassroots support, it needs the people.\u201d<\/p>\n

The fight, as Public Knowledge and as Copps sees it, to do the sensible thing. As Copps said on the program:\u00a0 \u201cI want to call telecommunications, \u2018telecommunications\u2019 and go back to the openness that has characterized the net since it was first invented in the laboratories of the Department of Defense. That’s not extreme. That’s not radical. That’s called going back to basics. That’s called consumer protection 101.\u201d<\/p>\n

In our comments, Public Knowledge made the same argument.\u00a0 We want to take the uncertainty out of telecommunications by calling Internet access what it is \u2013 a telecommunications service.\u00a0 Period.\u00a0 We don\u2019t have to make it a public utility, we don\u2019t need the dreaded \u201cheavy handed regulations\u201d about which the industry constantly complains \u2013 even though any regulations would be considered \u201cheavy handed.\u201d<\/p>\n

Sure, the telephone and cable companies will take the FCC to court if the Commission tries to reassert Internet access is a traditionally protected service.\u00a0 But the law is on the FCC\u2019s side, and the facts are on the FCC\u2019s side.\u00a0 The competition that the FCC thought would happen in Internet access hasn\u2019t appeared.\u00a0 Consumers have fewer choices, not more.\u00a0 The digital services that provided Internet access back then were once \u201ccommon carrier\u201d services.\u00a0 The telephone companies and others may dispute it, but there were formal tariffs filed with the FCC which show it.<\/p>\n

Let\u2019s not get cute here.\u00a0 Genachowski and the FCC should take on the fight, meet the issue head on and decide America\u2019s broadband future without getting cute and without the need for Houdini-like skills.\u00a0 They should do it not because PK advises it (although that\u2019s a good reason), but because it\u2019s the right thing to do.<\/p>\n","protected":false},"excerpt":{"rendered":"

There is no lacking for clever minds at the Federal Communications Commission (FCC).  They have all sorts of bright lawyers and economists and the like working on trying to make some sense of the world of telecommunications in all its glory.<\/p>\n

Last time we checked, however, they didn\u2019t have any escape artists on staff.  Unfortunately, that\u2019s what they will need to try to get away from the restraints put on the Commission by the U.S. Appeals Court, D.C. Circuit in the now famous case<\/a> involving Comcast\u2019s throttling of BitTorrent. <\/p>\n","protected":false},"author":50,"featured_media":0,"parent":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[13],"class_list":["post-9280","post","type-post","status-publish","format-standard","hentry","category-insights","tag-net-neutrality"],"acf":[],"yoast_head":"\nNo Houdinis Needed: FCC Should Take Direct Way to Broadband Authority - Public Knowledge<\/title>\n<meta name=\"description\" content=\"Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works. 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