The FCC to Redefine #ThrowbackThursday

By redefining broadband last month, as speeds above 25Mbps down and 3Mbps up, the Federal Communications Commission (FCC) effectively doubled the number of Americans now “without” broadband access from 6.3 percent to 13.1 percent. The new definition also means DSL services are virtually shut out of further broadband debate. Yet, this Thursday the FCC looks to play more than just word games with the future of broadband.


In name of the “Open Internet,” the FCC will most likely reclassify broadband under Title II of the Communications Act of 1934, thereby, subjecting nearly the entire Internet to antiquated “common carrier” regulations and 80-plus years of judiciary baggage. As one may gather, attempting to regulate today’s World Wide Web would be an Olympian challenge even for our most Herculean economists, lawyers, and telecommunications experts, let alone under the auspices of dusty legislation drafted during FDR’s first term.

If the courts do uphold the FCC’s Thursday decision, the commission would possess, as Larry Downes recently outlined, “the ability to set prices and approve service offerings, regulate business practices of content and service providers, share their power with every state regulator, and insert itself into traffic management negotiations deep in the core of the Internet.”

Make no mistake: as strongly as Chairman Tom Wheeler insists the FCC will “forbear” to enforce the more extreme provisions in Title II, nothing about forbearance is legally binding. With an election or change in public temperament, the FCC may easily “un-forbear” their lawful arsenal in name of the public interest.

Yet, as many decry this reclassification as “the end of the Internet as we know it,” our concern should be rather that we will only get the Internet as we have already come to know it, and nothing else beyond. With the 21st Century cyberspace and global network of computers as the dynamic and rapidly evolving system that it is and not a de facto state-sanctioned monopoly of the pre-digital age, regulators and advocates of a “hard” Title II Net neutrality must acknowledge when the network adapter does not connect. We simply need better than a #Throwback to the rules and regulations of the Ma Bell era.

Short story

In 1939, with his first published short story, “Life-Line,” Robert A. Heinlein writes, “Neither corporations nor individuals have the right to come into court and ask that the clock of history be stopped, or turned back.” As much as this passage has been referenced in modern intellectual property debates, it should not escape us that those advocating reclassification are in fact asking for precisely the same thing: for the digital hands of time to be “turned back.”

And here lies the problem: a dynamic system demands the embryonic to grow, evolve, expand, and diversify into evermore complex formulations. By failing to appreciate this “bio-digital jazz” before us, Net neutrality advocates just keep droning on with that tired, stale, flat note of “what is, should always be.”

With regulations designed for a static, mature telephony network, the FCC proves itself to be more than tone-deaf; it lacks any self-awareness. Since embarking on this interconnected voyage some twenty years ago, we have surpassed a network of networks to find ourselves now surfing, instead, a system of systems.

Creation story

From a technical perspective,” Dave Farber reminds us, “the Internet was never intended to be strictly neutral.” Strict neutrality in the network, as some believe to be hallmark of the Internet, would have actually created a sterile ecology, wherein technological and commercial adaptations would have been sparse, and thus our digital journey short.

In his 2012 book, The Dynamic Internet: How Technology, Users, and Businesses are Transforming the Network, Christopher S. Yoo notes, “[T]he policy debate has largely overlooked the extent to which the technological and economic environments surrounding the Internet have changed since the mid-1990s.” Basically, the Google of seven years ago is not the Google of today, and this change proves more radical than just the mere copying and replacement of organic cells in a single body.

Elsewhere, Yoo explains,

I think the pressure to provide different levels of service is a reflection of the way the Internet is becoming increasingly diverse. Different [applications] need different levels of security, bandwidth, latency, and other technical dimensions of quality of service. The natural response is for broadband providers to diversify their offerings. One of the concerns I have is that a strict version of Net neutrality might prevent that diversification from occurring.

Many Net neutrality advocates have not yet internalized how innovation is truly multidimensional, and from this they comprehend the world in silos. Hence, they so profoundly demand Title II reclassification as the singular way to govern broadband Internet. Because of the inter-platform competition encouraged by the Telecommunications Act of 1996, our technology today thrives in a diverse, borderless environment, one free of silos and dial-up speeds.

If the FCC votes tomorrow to reclassify, in effect, forcing artificial silos from a #Throwback age on today’s quickly advancing technology, we can only expect an ill-suited future for broadband.

Side story

To act in our long run interest often requires harsh measures in the short run, and many an important issue fail in this regard, e.g. addressing global warming and reforming Social Security and Medicare. Reclassification, however, bears not only on future innovation and technological progress, but impacts today’s taxpayers and job numbers.

According to work by American Action Forum, Title II reclassification risks some 174,000 broadband-related jobs and potentially draws companies like Google, Facebook, and Netflix into the FCC’s jurisdiction. As well, the Progressive Policy Institute calculates, “When you add it all up, reclassification could add a whopping $15 billion in new user fees on top of the planned $1.5 billion extra to fund the E-Rate program.” What’s more, Free Press, who loudly advocates for a “hard” Title II Net neutrality, does not deny added costs to consumers, only the actual amount of the bill. (At least, six flaws occur in the Free Press’s estimates.)

Yet, maybe worst of all, due to longstanding federal law, any company deemed a “common carrier” finds itself exempt from antitrust law. Therefore, if the FCC commences regulating broadband as a public utility, the Federal Trade Commission (FTC) loses its regulatory authority. This means the attentiveness by the FTC in policing practices of Internet service providers (ISPs), such as, consumer privacy protections, would cease, “explicitly and permanently.”

Downes adds, “Indeed, the existence of these laws and the active engagement of the FTC to enforce them has long been the strongest argument against the need for more specific open Internet rules from the FCC, reflecting a long-running turf battle between the agencies.”

Final story

All parties need to understand that advanced technologies, like the Internet, cannot be governed; yet, it can and likely should be managed in some fashion. The only adequate manner to do this, however, requires scrapping the Communications Act of 1934 altogether, just as the Interstate Commerce Act of 1887. Because we supplanted the latter with the Staggers Rail Act of 1980, The Economist reports, “America’s freight railways are one of the unsung transport successes of the past 30 years. They are universally recognized in the industry as the best in the world.”

Advocates of Title II reclassification seek not a regulatory approach complementing the architecture of an increasingly dynamic and heterogeneous online marketplace of goods and ideas, but rather a rusty #Throwback to a bygone day. In short, Title II reclassification of the Internet is like trying to wind up a digital clock. It just does not make sense, given an any reasonable understanding of the technology.

This is an essay posted on my website, Parsons’ Pulpit, on February 25th, 2015.