The Buck Stops at the FCC
Since the DC Court threw out the Federal Communications Commission’s Open Internet rules last week, “network neutrality” is a glaring problem that demands prompt action. The good news is that the solution is pretty simple. It doesn’t require a new telecommunications statute replete with time-consuming years of legislative horse-trading and special interest lobbying. All it requires is an FCC big enough to own up to its previous mistakes and courageous enough to put our communications future back on track. The solution: reclassify broadband as “telecommunications” under Title II of the Communications Act.
The DC Circuit Court of Appeals pointed the way out of the dilemma created when the FCC reclassified broadband as an “information service” over ten years ago. The Court held that the Commission has authority to make decisions on broadband and that these decisions are entitled to considerable deference by the judiciary. The FCC could have decided on a different path and still garnered court approval. Importantly, it can also change course if it justifies the reasons for the change. What the judges said last week was that the Commission justified its Open Internet rules the wrong way. Had the agency just kept treating advanced telecommunications as “telecommunications,” its Internet Freedom rules would have passed muster. But by calling broadband an “information service,” the FCC put it beyond the reach of Title II which applies to telecommunications. And Title II is where such things as consumer protections, privacy guarantees, public safety, and ubiquitous build-out requirements pertain. Who, other than the big companies trying to gain market power over broadband, would ever have argued that Congress intended broadband communications to be stripped of such elemental consumer and public interest protections?
The time is now for the FCC to classify broadband as Title II. Without this step, we are playing fast-and-loose with the most opportunity-creating technology in all of communications history. Without this step, we are guaranteeing an Internet future of toll-booths, gatekeepers and preferential carriage. Without this step, we stifle innovation, put consumers under the thumb of special interests, and pull the props from under the kind of rich civic dialogue that only open and non-discriminatory communications can provide
Saying that the solution is simple is not the same as saying it is easy. No matter what course the Commission chooses, powerful forces will contest it. If the Commission, instead of reclassifying broadband as what it is, attempts some new and novel reading of the statute, it is just inviting more years of detour and delay. And every month of delay only gives the big telephone and cable companies more time and opportunity to make the Internet…theirs.
Some argue that the best way out of the dilemma is for Congress to enact a new Telecommunications Law. Last week, the House Subcommittee on Communication and Technology held a hearing on the adequacy of the current statute, the Telecommunications Act of 1996. I had the honor to testify there. I believe the testimony of that hearing is pertinent to the challenge of how we should proceed to guarantee an Open Internet and to ensure that every American has access to it.
Some say that simply because the Act is old, it must be obsolete -- that no matter how well it has served us, an act written 18 years ago cannot possibly have relevance in today’s world. (The Declaration of Independence and the Constitution were written long ago, too, yet we still find them relevant.) While it is praiseworthy to ponder changes to the law, I would suggest, firstly, that the framework of the current statute remains in many ways strong and, secondly, that the current Act’s provisions can still do much to improve our communications landscape, to enlarge economic and social opportunity for all of us, and to nourish the kind of civic dialogue upon which successful self-government inevitably depends.
It is impossible for me to see the stars aligned to produce a new law -- especially a good new law. I discussed this in my testimony. The last Telecommunications Act rewrite in 1996 resulted from a unique political constellation that aligned a sufficient and sundry number of stakeholders across sectors and constituencies who were able to negotiate a compromise statute that, while far from perfect, at least envisioned delivering to all American -- no matter who they are, where they live, or the particular circumstances of their individual lives -- the most advanced communications technologies and services feasible, at reasonable and comparable prices, replete with consumer protections, rights of privacy, and assurances of public safety.
But the ink was hardly dry on the new law before some of the very interests who helped negotiate it went to work undermining it instead of implementing it. The statute called for competition, but the big companies worked day-in, day-out to make sure smaller providers were squeezed out (or bought up and made part of the consolidated giants). They went to work on the FCC, too, extracting industry-friendly decisions to drive competitors out. As a Commissioner, I testified in front of Congress many times to voice my dissent on Commission decisions involving the reclassification of communications services, industry consolidation across both our telecom and media sectors, the elimination of policies that had long safeguarded the public interest, and the heavy toll thereby exacted on consumer choices, consumer prices, and slowing the deployment of competitive, low-cost, high-speed broadband -- this century’s most important infrastructure.
Truth is, our country isn’t blazing many trails when it comes to getting high-speed, low-cost, open broadband out to all our people. I know there are some who argue that America is a veritable broadband wonderland, a triumph of free market entrepreneurship that puts us at the forefront of high-tech nations. But stubborn facts belie their easy optimism. The United States, originator of so much of the technology behind the Internet, has fallen from leader to laggard in broadband penetration. According to the OECD, our country is 16th in wired broadband connections per 100 residents. Worse, comparative research shows that Americans are paying more and getting less than wired broadband consumers in competitor countries. The Department of Justice has noted that the local wireless marketplace offers consumers little in the way of choice, even as mobile data plans are saddled with data caps that harm consumption and innovation alike. And once again, for the third time, the FCC found itself unable to certify that we enjoy a competitive wireless marketplace. Surely the time is now for proactive and pro-consumer measures to make quality broadband universally affordable once and for all.
While I don’t write today to rehash all those decisions, let us recognize that our present statute has been interpreted and implemented in ways not originally intended and that many of its constituent parts are still relevant, workable, and consumer-friendly. There is a statute to enforce, and putting that job on hold while we consider changing it is not a good option. Placing it on-hold only gives telecom and media giants more time to take broadband and Internet technologies down the road to further consolidation and gatekeeper control.
Finding a new correlation of interests that can come together to forge the Communications Act of 2015 or 2020 would be even more challenging than the jockeying that gave birth to the current law. And, since the power of money has grown exponentially even since 1996, any proposed legislation that actually advanced would likely be measurably worse than the current law. As the world races ahead, we have a duty to make the best possible use of the laws we have in order to achieve the ongoing goals Congress laid out. These remain powerful instruments. A statute that invokes “the public interest” over 100 times; that highlights universality of service, competition, and consumer protection; and that underlines the necessity for media that informs communities and engages citizens cannot be all bad.
I always come back to democracy, because this is what concerns me most. Our country is in trouble, reminiscent in many ways of the severity of the economic, global and social crises it faced in the 1930s, and there are no guaranteed happy outcomes. I just do not see how citizens can be expected to navigate through all these issues and come out with smart decisions for our nation’s future when the telecommunications tools we need are not available to all and in a media environment where community outlets have been short-circuited, investigative journalism hangs by a life thread, and wherein we expect some invisible hand to produce those things that the market itself no longer produces and which, over the course of our history, the market alone has never produced. Communications are vital to our economy. Even more importantly, they are the life-blood of our democracy. They must be available to all, open to all, never the exclusive province of the affluent or the few, always alive to the common good. We should not see our communications world as part telecom, part media or part traditional media and part “new” media. We have one communications ecosystem and our job is to make it work for everyone. I know of no greater challenge that confronts the Congress, the Commission, or the country.
So the time for action is now. Soon a coalition of citizens will deliver petitions to the FCC calling on the agency to take the obvious step of reclassifying broadband to protect consumers, innovation, and online free speech. Hundreds of thousands of everyday people from across the land have already signed on, and there is still time to add your name. Do it today -- then ask your friends to do the same.