FCC Chairman Genachowski’s proposal to extend and codify the FCC’s “Internet principles,” delivered in a speech just yesterday, has already attracted a substantial amount of commentary. There is no doubt that his proposed rulemaking will be the subject of much literature issuing from The Media Institute proper, and in this space as well, in days to come.
For now, however, just a few observations, in no particular order of importance: First, for those of us who take a perverse delight in the use and abuse of language in policymaking circles, there is much that is droll in the way that industry players have responded. Like a man about to be executed, seizing on the offer of a last cigarette as a chance to spin or delay the inevitable, many of the broadband access providers’ comments seek to glom onto some part of the chairman’s proposal as will allow them to buy time.
Thus have several of the companies, and their associations, complimented the chairman for promising an "open proceeding" or some such. Not to be smug, if we at The Media Institute were lobbyists we too would probably say such things. Since, however, we are not, we can speak more plainly.
The reason this proposal has come into being, and will undoubtedly be passed in some form, is not because of some new threat (or old threat, for that matter) to the “free and open” Internet. Rather like blaming, as someone once said, the Johnstown Flood on a leaky toilet in Altoona, the record of “abuse” by broadband providers is so inconsequential it doesn’t begin to explain the need for such an intrusion into the marketplace.
No, the reason this proposal is at hand is because of something more prosaic. It is, would you believe, because of politics. It is because there are now three Democrats on the Commission and only two Republicans. (Some would argue that even during Kevin Martin’s reign there were three Democrats, but that’s another matter entirely.)
The best evidence that this is the case can be seen in comments from inside the FCC itself, specifically those of the Republican commissioners, McDowell and Baker. Not only do they express skepticism about the wisdom of the proposed rulemaking, they openly question whether “factual and legal conclusions may have been drawn before the process has begun.”
Back in the day, at the dawn of the Internet, the concern was that the FCC not become the Federal Computer Commission. That was then and this is now, but the concern that animated that sentiment survives. It is that the government is a poor substitute for the marketplace in allocating resources.
Because Chairman Genachowski knows that the strongest criticism of his proposal is that it will frustrate investment and innovation in the broadband space, he looks to preempt the argument by denying it. His plan, he says, amounts only to “rules of the road” that will actually stimulate investment and innovation.
Well, time will tell but the view from here is much less rosy. The greater likelihood is that: (1) There will be less private sector investment than would otherwise be the case; (2) that the investments that are made will come from tech firms that employ a peculiarly large number of lobbyists; and (3) that when the dust settles, the only lasting impact will be in the legal precedent established by putting the camel’s nose of government under this particular tent.