Re: NOTE DATE FCC Moves Closer to Regulating the Internet

[David Farber <dave () farber net>]

The Esbin paper is worth reading even if you disagree with her and  
PFF. djf

Begin forwarded message:

From: Brett Glass <brett () lariat net>
Date: September 11, 2008 7:52:13 AM EDT
To: dave () farber net, "ip" <ip () v2 listbox com>
Subject: Re: [IP] NOTE DATE  FCC Moves Closer to Regulating the Internet

Tech Law Journal wrote (in 1998):

> The Congress, courts, and until recently, the FCC, have held to a
> distinction between "telecommunication services" and "information
> services" (also referred to as "basic" and "enhanced," respectively).
> The former are subject to FCC regulation -- the latter are not.  The
> FCC maintains in this Report that it still adheres to this dichotomy.
> However, it seeks to redefine certain information services as
> telecommunications services.

In fact, the FCC and the courts have in the past decade gone the other  
way, redefining many "telecommunication services" as "information  
services." (Some would say that they have gone too far in this regard  
by claiming, as in the Brand X case, that access to essential  
facilities -- that is, telecommunications infrastructure which is  
infeasible to duplicate -- is an "information service.")

> The Report argues too that with technological convergence "it will
> become increasingly difficult to maintain that particular facilities
> are 'cable' as opposed to 'telecommunications'."  And because of this,
> existing "regulatory categories," claims the Report, "must necessarily
> collapse of their own weight in the digital communications world of
> tomorrow."

While the FCC report does recognize convergence, it does not --  
contrary to the impression given by this article -- does not advocate  
regulation of the Internet. In fact, it says:

"The challenge for the regulator, at each step, is to examine the  
underlying purposes and policy goals behind existing regulatory  
categories, and to apply them only where those purposes and policy  
goals make sense.  Any regulatory efforts in this arena should begin  
with an analysis of whether the operator in question exercises undue  
market power over an essential service or facility necessary to  
provide an essential service."

Barbara Esbin, the author of the 1998 FCC report, has recently argued  
that the FCC, by attempting to regulate and micromanage ISPs and the  
Internet in its recent Comcast order, has exceeded its authority and  
may be in danger of becoming a "runaway agency." In her white paper  
titled " The Law is Whatever the Nobles Do: Undue Process at the FCC" at

http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf

she says,

"The FCC’s action highlights a greater problem. Now that the FCC has  
asserted its authority to regulate Internet provider broadband network  
management practices, the question arises, "who will regulate the  
regulator?" This is not an idle inquiry, but rather an urgent  
problem.  For apparently what we have on our hands is a runaway  
agency, unconstrained in its vision of its powers and unconcerned  
about the serious reservations expressed by the current Administration  
and members of Congress. As dissenting Commissioner McDowell stated:  
"Under the analysis set forth in the order, the Commission apparently  
can do anything so long as it frames its actions in terms of promoting  
the Internet or broadband deployment."

Her paper, and the arguments in it, are well worth reading.

--Brett Glass





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