by Jason Rosenbaum
In the last few days, both the New York Times and noted digital activist Lawrence Lessig have joined the call for the FCC to reclassify broadband, which would once again allow the government to regulate the Internet in the face of hostile money-grubbing from big phone and cable companies after a federal court denied them that right a few weeks ago. It would also allow the FCC to protect net neutrality and ensure the Internet is open for all, not just for the rich.
By way of background, all the FCC needs to do to regulate the Internet - the most important communications medium of our time and well within the FCC's mission - is reverse a Bush-era mistake:
Under intense pressure from phone and cable companies, the Bush FCC chose to reclassify broadband as an "information service" instead of a "communications service" that provides strong regulatory oversight of traditional telephone services. Problem is, the "information service" classification so lacks the required regulatory authority, that the court just decided the FCC can't do anything. University of Michigan's Susan Crawford explains it in detail here.
The good news is that there is a simple solution. FCC Chairman Genachowski must "reclassify" broadband as a "communications service." The formidable phone and cable companies will fight tooth and nail to keep that from happening, but the Comcast case has forced Chairman Genachowski's hand: he must make the change. If not, the FCC has virtually no power to stop Comcast from blocking websites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. Bottom line: the agency has no power to enact the much-discussed National Broadband Plan, released just last month.
FCC Chairman Genachowski has been forced into a corner, and he will have to either stand up to the big companies and do the right thing, or watch his legacy at the FCC wash down the drain.
All the FCC needs to do to correct this mistake is to hold a vote. And given there are three Democratic members of the FCC to two Republicans right now, the votes are thought to be there.
But it's not quite as easy as that:
The backlash from these big corporations, as you can imagine, will be intense. They'll be deploying their army of lobbyists to pressure the FCC in closed-door meetings, get corporate Members of Congress to sign business-friendly letters, and contribute to the campaigns of politicians to win their support. As one insider working for reclassification put it today, the lobbying and pressure from telecom companies against reclassification "will be like the fight over net neutrality times ten."
However, the path forward remains obvious. Reclassification is the solution. On Sunday, the New York Times got on board:
Fortunately, the commission has the tools to fix this problem. It can reverse the Bush administration's predictably antiregulatory decision to define broadband Internet access as an information service, like Google or Amazon, over which it has little regulatory power. Instead, it can define broadband as a communications service, like a phone company, over which the commission has indisputable authority.
The F.C.C. at the time argued that a light regulatory touch would foster alternative technologies and aggressive competition among providers. It assumed that the Internet of the future would be dominated by companies like AOL that bundle access with other services, justifying its conflation of access and information.
And it claimed that it could still regulate broadband access even if it was classified as a service. All it had to do was convince the courts that it was necessary to further other statutory goals, like promoting the roll-out of competitive Internet services. This legal argument did not hold up.
Any move now by the F.C.C to redefine broadband would surely unleash a torrent of lawsuits by broadband providers, but the commission has solid legal grounds to do that. To begin with, the three arguments advanced by the F.C.C. during the Bush years have proved wrong.
Rather than seeing an explosion of new competition, the broadband access business has consolidated to the point that many areas of the country have only one provider. Broadband Internet has unbundled into a business with many unrelated information service providers vying for space on the pipelines of a few providers.
And most persuasively: broadband access is probably the most important communication service of our time. One that needs a robust regulator.
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