FCC's Modest Broadband Oversight Proposal Not Cause for Hysteria

Carolyn Schuk : VoIP Princess Blog
Carolyn Schuk
| News and views on the world of IP communications from the VoIP Princess, Carolyn Schuk.

FCC's Modest Broadband Oversight Proposal Not Cause for Hysteria

I checked in this morning to see how the FCC's latest Net neutrality proposal last week was faring with the unhinged fringe.

Fox News, with its customary fair and balanced perspective, offers "FCC Goes For Nuclear Option - Seeks To Control Interent," and "Genachowski's 'Third Way' Is a Washington Internet Takeover."

Over at Whited Sepulchre we have: "The announcement last week by Federal Communications Commission Chairman Julius Genachowski that the agency planned to assert authority over the Internet raises all kinds of red flags...Every street in America should look like one of Chairman Mao's Cultural Revolution Rallies."

And at Freedom's Phoenix, "FCC Chairman Julius Genachowski's Mussolini-like Internet Power." It's right there next to "Obama's secret plan for the 4th reich? Part 1," and "The Military is Spraying Our Skies."

It's all so expected that it's not even amusing any more.

Despite the fact that everyone, from the Washington Post to career conspiranoid Alex Jones - Police State 4: The Rise Of FEMA - Don't Miss Out! Get Your Subscription Today! - is saying that Chairman Mao Tse Genachowski is enacting a diabolical master plan for crushing the free spirit of the Internet - not to mention Avatar downloads from BitTorrent - under the FCC's Wehrmacht, the FCC is not, repeat IS NOT, proposing to regulate ISPs like telephone companies.

How do I know this? Because unlike most of these reporters, apparently, I actually read the FCC's 14-page statement.

It all goes back to 1910 when the Federal Trade Commission first established its jurisdiction over telecommunications, along with the notion of "natural monopoly," the helpful suggestion of the Bell Telephone Company.

(Nothing like a "free market" married to a "natural monopoly." Our current worst-of-all-approaches telecommunications un-regulation is its bastard offspring.)

Twenty years later the 1934 Communications Act established the FCC, which remains the underlying architecture of US telecom regulation. The 1934 law chartered the FCC to regulate telecommunications, but not necessarily promote its development.

The Telecommunications Act of 1996 - of which we in the Internet industry are so fond - brought significant change to the communications the industry landscape. In addition to letting us plug in our 2400 Bd modems, the 1996 law formally defined two types of public communications services: "regulated telecommunications services" - conventional telephone service - and "information services" that were not subject to the requirements governing telecommunications services. The FCC later ruled in 1998 that the agency "did not find it appropriate" to classify Internet access as a telecommunication service "in the absence of a more complete record focused on individual IP service offerings."

Fast forward to 2010 and the United States is now in 16th place in broadband speed -ahead of Greece, behind Portugal. The FCC proposes a plan to get broadband Internet to every one of the US 300 million residents and gets a giant smackdown from the Supreme Court. Why? Because neither the 1934 nor 1996 Telecommunications Acts give the FCC "statutory authority" over the Internet.

So the FCC responded with its May 6, 2010 proposal  for "light-touch" Internet oversight by the FCC. First, the proposal describes three approaches. The first is doing nothing - the favored Republican Party answer to all questions of public policy. The second alternative is the dreaded reclassification of the Internet access as a regulated telecommunications service. But don't get hysterical just yet. It's just an alternative.

The third alternative, which is the one that the FCC is putting forward, is further defining "information services."

This redefinition rests on another Supreme Court decision (so-called Brand-X) about whether cable modems should be classified as information services or telecommunications services. In that case, the court's majority ruled that federal telecommunications law left policy "in this technical and complex area" to be set by the FCC. In a dissenting opinion, Justice Antonin Scalia wrote "the 'computing functionality' and broadband transmission component of retail Internet access service must be acknowledged as two separate things."

The FCC's proposal makes the case that both the majority and dissenting opinions in Brand X provide the basis for FCC Internet oversight.

If this arcane legal reasoning seems too recherché, the FCC's proposal states right up front: "The Commission does not regulate the Internet. The policy of preserving the Internet as a generally unregulated, free-market forum for innovation, speech, education, and job creation finds expression in (among other provisions) section 230 of the Communications Act, which states Congress's conclusion that "[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation." (47 U.S.C. 230(a)(4))"

What's that you say? That's just there to put folks off the scent of the FCC's true intentions? Better hurry up and unload that worthless fiat paper money and get out of Dodge before the FEMA lizard-people come to eat your children and haul you away to those secret Venusian prison camps.

(On that note, Conspiracy ConX is coming up at the Santa Clara Marriott on June 5-6. Featured sessions include, The Hidden Cabal: Rothschild, Obama, Palin, And The Plot To Murder America; The New World Order and the Alien Agenda; and 666 Reasons for Smart Dust and RFID. You can read my report on last year's conspiranoid funfest, at  Around Santa Clara.)

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