Is This What Net Neutrality Is Really About?

Recent congressional hearings held in the wake of the Federal Communication Commission’s (FCC) net neutrality ruling provide a glimpse into what is so deeply wrong with this regulation, and why so many activist groups were behind it.

It’s an aspect of this matter of which you were perhaps unaware while the FCC was considering its regulatory strategy. Perhaps you thought net neutrality meant what was said of it: that it was intended to prevent the blocking or throttling of websites, or of “paid prioritization.”

Silly you.  Actually, those were the interests of those companies — like Google and Netflix — that saw in governmental sway over the Internet commercial benefits for themselves.  But what about those groups and individuals who had political or ideological interests, and who played such outsized roles in the deal?

You know, groups like Free Press, Media Matters, Public Knowledge and New America’s Open Technology Institute?  Or what about the large grant-giving foundations, like Ford, MacArthur, Knight, and George Soros’s Open Society Institute that, in addition to munificently funding third-party net neutrality activists, directly lobbied the FCC themselves?

It should now be clear, even to those who weren’t paying attention earlier, that the primary interest these groups had, and have, in net neutrality is their desire to insinuate government in the regulation of speech on the Internet.  >> Read More

 

What Changed the FCC Chairman’s Mind?

On the occasion last week of the Federal Communications Commission (FCC)’s passage of “net neutrality” regulations, Tom Wheeler, chairman of the Commission, announced that it was “the proudest day of my public policy life.”  It’s not known whether that statement is a reflection of how little Wheeler feels he’s accomplished in life, or an embarrassing attempt to take credit for something that was forced on him.

What we do know is that the regulation that passed with his vote – and those of the other two Democrats on the Commission – was not the much sounder one Wheeler initially proposed, but a radical version that carries within it opportunities for mischief and much worse than that.

So what happened to change Wheeler’s mind?  The most obvious explanation is the interjection of President Obama who, a few weeks before the vote, publicly stated his view that the FCC should subject Internet service providers (ISPs) to utility-like regulation.  This is the explanation for Wheeler’s switch held by most insiders, and there’s no doubt that these FCC commissioners, their notional “independence” notwithstanding, move like earlier ones to the music of their parties and the presidents who appoint them. >> Read More

‘Forbearing’ the Constitution: Net Neutrality and the FCC

So the latest word is that the Federal Communications Commission (FCC), a branch of government that, amusingly, is still referred to as an “independent” agency, is about to enact so-called net neutrality regulations under Title II of the Communications Act.

This, because according to its fans at the Commission, such regulations are needed in order to ensure a “fair and open” Internet.  Because, however, even the most passionate among them understand the many problems this would otherwise cause, the majority Democratic commissioners are said to be poised to enact regulations that forbear the full imposition of Title ll rules.

Meantime, Congress is considering enacting a law that would itself aim to protect net neutrality, but would do so in such a way as to deprive the FCC of its ability to regulate Internet service providers as a utility under Title II.

If (you’ll forgive the expression) one googles the word “forbearance,” the first definition that comes up reads: “The action of refraining from exercising a legal right…. ” — and there’s the rub!

With every passing day it becomes clearer that the Internet is the future of the press, and the plain language of the First Amendment bars the government from abridging freedom of speech or of the press.  >>Read More

The FCC’s Net Neutrality Vote

Not unlike the way that people present themselves as avatars in cyberspace, policymakers in Washington present themselves behind a veneer that is usually as predictable as it is tiresome. But not always!  Once or twice a decade some public official will do something that surprises, and in doing so leaves all the other players gobsmacked and reeling.

This is precisely what has happened at the FCC in recent days as the newly installed chairman, Tom Wheeler, acting in the wake of a court order, has proposed a reform of that agency’s so-called net neutrality regulations.  In a nutshell, the Wheeler proposal would allow ISPs to provide, for a fee, faster lanes to the consumer for content providers.

If you are one of those people who don’t find the idea of paying more for better things to be a deeply radical idea, your problem is that you’re unschooled in the ways of political posturing, rhetoric, and the lay of the land.  You don’t understand that, to Democrats especially, the “free and open Internet” cannot allow upgrades of the sort that would make any content provider (and that provider’s customers) happier than any other provider or its customers.  Distributive justice, you know.

In the grip of this construct, the Internet must remain a static and unchanging highway, never in need of pothole filling or additional traffic lanes.

Which is not to say that Republicans, too, don’t like Wheeler’s proposal.  Indeed, the confounding fact is that both of the Republicans on the Commission voted against the proposal while all three of the Democrats voted for it!  And in truth the Republicans are correctly concerned about the precedential effect of net neutrality on the formerly unregulated Internet.  In his statement opposing the measure, Republican Commissioner O’Rielly made this argument cogently, just as former commissioner McDowell had before him.

Still, there is the gnawing concern that, given the way the pieces are deployed on the board right now, it might have been better in the long run if the Republicans had given Wheeler some support for breaking from the Democratic ranks.

Whatever the future may hold, one thing is clear: The final resolution of this matter is nowhere in sight.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Julius Genachowski and Broadband Billing

Comments made earlier this week by FCC chairman Julius Genachowski have raised hackles at organizations like Free Press and kindred groups.  The occasion was the Cable Show in Boston, and the offending subject was what is called “usage-based billing” – the radical notion that people who use more of a thing should pay more than those who use less.

In a Q&A session with Michael Powell, former FCC chairman and current CEO of the National Cable and Telecommunications Association, Genachowski avowed that there was much to like about broadband providers basing their charges on usage (rather than on a one-size-fits-all basis).

This wasn’t the first time Genachowski had endorsed this practice – it was part of the net neutrality regulations that the FCC promulgated a couple of years ago – but it was enough to provoke the simple folk at Free Press into eruptions of their usual blather.

The last time broadband billing was discussed in this blog (April 2009), the news was Time Warner Cable’s decision, under fire from people and organizations like Free Press, Public Knowledge, and Sen. Charles Schumer, to suspend their trials of this kind of billing in a handful of cities.

As reported at the time, the air was thick with celebration as the “victors” issued triumphant statements on the occasion.  Triumphant no more, they have been reduced, in response to Genachowski’s comments on Tuesday, to broadsides and bromides like this one from Matt Wood, policy director of Free Press: “The data caps being pushed by the biggest cable companies are bad for consumers … and the FCC should be investigating these caps, not endorsing them.”

But enough about broadband billing per se.  The more noteworthy thing about Genachowski’s comment is that this marks at least the third time that he has demonstrated his independence from the louder voices among communications policy outfits.

The first time was with the FCC’s adoption of what came to be called “net neutrality lite,” and the second was when he hired Steve Waldman to head up the agency’s “future of media” report, a document that steered clear of the most intrusive and inappropriate kinds of recommendations that had been proposed for it.

None of this is to say – nor would the gentleman necessarily welcome our saying – that Mr. Genachowski is the very model of what one looks for in an FCC chairman.  Though the net neutrality regulations are much better than what they might have been, better still would be no such regulations at all.

Still, in an environment as divisive as Washington’s, it’s probably a good idea once in a while to step outside of it all and give credit where credit is due.  So props to Julius Genachowski for his embrace of usage-based broadband billing.  ’Tis a fine thing he’s done.

                                     

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Net Neutrality’s Poison Petition

For those in the communications policy business, perhaps the most jaw-dropping datum to issue from Tuesday’s elections is this: Of the 95 candidates for the House and Senate who signed a petition encouraging “net neutrality” regulation, all of them lost.  Not some of them.  Not most of them.  All of them.

It’s really quite remarkable.  Not even the Black Death killed everybody.  But there it is, a new world record for political toxicity.  The humorous aspects of this debacle aside, there is a serious lesson here: There is no appetite in this country for regulatory schemes whose effect is to promote government (and a few companies) at the expense of private-sector investment generally.

Yet this is precisely what net neutrality regulations, whether Lite or industrial strength, would do.  Intended or not, codified regulations would inevitably lead to government meddling in this freest part of the communications industry, and frustrate the kind of investment in the broadband infrastructure without which there can be no growth in this vital sector of the economy.

And for what?  As mentioned here, net neutrality is the condition that obtains today!  Nobody is being deprived or disadvantaged of anything worth talking about.  Indeed, a quick look at the kinds of organizations that have been promoting net neutrality pretty much says it all.

On the one hand we have groups like Free Press, whose interest in the subject is precisely because of the potential in governmental oversight to yoke communications companies to the agenda of the nation’s “progressives.”  While on the other you have a company like Google that, in the best tradition of crony capitalism, wants to tilt public policy in a direction that benefits its private interests.

It is widely believed that FCC Chairman Genachowski  would like the FCC to be relieved of the responsibility of taking on the task of codification of the net neutrality rules.  He is to be commended for his reservations, especially since he is under great pressure from the net neutrality lobbies to act.

The wise course now would be to let the clock run out on any kind of FCC action.  If the Republican gains in Tuesday’s elections don’t speak clearly enough about the matter, surely the fate of the hapless signers of the net neutrality petition does.

[Updated 11-4-10, 1:50 p.m. EDT, to reflect latest election results.]

                                                   

               
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.
 

Shedding Light on Title II and the First Amendment

Now that FCC Chairman Julius Genachowski has proposed what Broadcasting & Cable’s John Eggerton artfully calls a “Title II Lite” approach to broadband regulation, it’s a good time to take a second look (or maybe your first) at a recent paper by Robert Corn-Revere.

Bob wrote a Perspectives policy paper for The Media Institute titled “Defining Away the First Amendment,” which we released May 4.

This noted First Amendment attorney makes a crucial point – but a point that has not received adequate attention: “The FCC’s current ability to change the level of First Amendment protection for a medium simply by changing its regulatory definition is quite limited, if not nonexistent.”

Whoa, you mean there’s a First Amendment dimension to this reclassification debate?  You’d never know it by listening to the FCC, or to “net neutrality” supporters like Free Press.  Maybe that’s not surprising, since the First Amendment could very well prove an unwelcome stumbling block for Chairman Genachowski and his net-neutrality ilk.  Easier for them just to ignore it.

But, I would suggest to you, the First Amendment is far too important to ignore here.  In his issue paper, Bob Corn-Revere has shed some much-needed light on a pivotal concern that the FCC has tried to keep in the shadows.  Taking a “lite” approach to Title II reclassification doesn’t absolve the FCC of its constitutional obligations.  If anything, we need more “light” from Bob and others who are willing to hold the FCC accountable for the First Amendment ramifications of its regulatory agenda.

Cute as a Button: The Schemes and ‘Confessions’ of Reed Hundt

Sorry to say, there are people in public life who, were hubris a lubricant, could forego ambulation and just glide on down the road.  Reed Hundt, the former chairman of the FCC, is one such person.

Hundt is back in the news these days because policies he clandestinely pursued while chairman are now thought by some (including Hundt himself) to be coming to fruition at the hands of his former FCC aides and confidantes, one of whom, Julius Genachowski, is now chairman.

This, and more, was revealed in a speech Hundt gave last month at Columbia University.  The subject of his address was the national broadband plan, then set to be released by the FCC just a week later, and what he characterized as a “confession or admission” of the role he played, years earlier, in using his office as chairman to systematically elevate broadband, at the expense of broadcasting, as the “common medium.”

To quote the great man himself: “The choice to favor the Internet over broadcasting was initially made in first-draft form by some of the people who are now running the FCC.”

One can only imagine how happy this revelation must have made the current FCC chairman since, if we’re to believe Hundt, not only was Genachowski a co-conspirator, so to speak, he was just a tagalong – the horse to Hundt’s Lady Godiva.

Lest you think for even a minute that the gentleman feels remorse about any of this, be advised: He doesn’t.  Quite the contrary, Hundt is pleased as punch with the way he handled things, amused even, and he wants you to see it the same way.  Rather like a school boy pulling a prank on the headmaster, Hundt sees his scheming not only as smart and justifiable but as positively cute in the way it confounded all but those few in the know.

How else to explain his characterization of his efforts to suppress broadcasting – by delaying, for instance, its transition to HDTV – as “a little naughty?”  Or his boast, re the ability of people to use the telephone network, for free, to connect to the Internet, as a case of the government “stealing the value from the telephone network and giving it to society?”

Not everyone sees the humor.  One who is particularly unamused is Gordon Smith, formerly Senator Smith, and now head of the National Association of Broadcasters. As reported in Broadcasting & Cable, Smith had this to say when asked what he thought of Hundt’s speech: “Frankly, I was rather offended, as a former member of the Senate Commerce Committee, that his secret musings were never shared with the elected representatives of the American people.”

Actually, Hundt’s Columbia performance isn’t the first time he’s spoken (what shall we call it?) “candidly.”  Years earlier there was the book, You Say You Want a Revolution, that he wrote not long after leaving the FCC.

Sandwiched between characterizations of some of his fellow commissioners as the “Gang of Three,” and innumerable accounts of the commercial rabble with whom he was obliged to spend time, Hundt wrote some things that are of a piece with his Columbia speech.

One of these describes a meeting he had in 1995 with Bill Gates. Hundt writes:

We had come to appeal to Gates’ self-interest.  As everyone on the West Coast knew, computing was heading directly toward communications….  With Gates as commander-in-chief, the entrepreneurs could win a lobbying war even against the powerful broadcasters….

I wanted Gates to go after the spectrum, because the auction was such a pure and sensible goal.  Later, depending on how the meeting went, we would ask for his help in connecting every classroom to the information highway….

If those who bought the spectrum at an open auction could ignore the networks’ deal with Congress and abandon high-definition television, they could transmit digital information to PCs….

Gates rocked in his chair.  His eyes magnified by his glasses, he stared at me, and asked urgently, "Does anyone else know about this?"

Elsewhere in the book, Hundt describes his attendance at a meeting hosted by the Gores (Tipper and Al), also in 1995, on the topic of Families and the Media:  

Then the President and Vice President each said they would support the children’s television initiative.  I had become part of the Administration’s political agenda – perhaps the first time in history that FCC issues were in the center ring of the political circus.  Al singled me out in the crowd.  I stood up.  The auditorium applauded.  The event made the national news.  It was intoxicating; it was much more important to be there in Nashville than at, say, an NAB convention.

Many people would agree that the Internet already is, or will become, the “common medium.”  And in an age when Saul Alinsky is held up as a role model, and the ends justify the means, views and acts like Hundt’s will almost certainly escape widespread censure.  But there’s this one small problem with the government picking the industrial winners and losers: What happens if they’re wrong?

Of course we know that governmental estimates and projections are never wrong.  But imagine that sometime in the future it happens.  Wouldn’t that be something?  Because, you know, in that case the government would not only have distorted the marketplace, it might have created problems it hadn’t even considered.

As it happens, there’s a claim in Hundt’s book that hints of this very problem.  In the same chapter in which he wrote of his meeting with Bill Gates, Hundt claimed that “big-screen televisions would cost so much that less than one percent of Americans would buy them.”

Imagine our surprise, then, when we check now with people at the Consumer Electronics Association, and are told that, in 2010, almost half (about 47 percent) of all TV sets sold are big screen.  Could this mean, Hundt’s furtive schemes notwithstanding, that the Internet won’t be the only common medium?  Go figure.

Cross posted at Huffington Post, April 21, 2010.

D.C. Circuit’s ‘Net Neutrality’ Decision

The D.C. Circuit Court’s decision, while obviously correct, will not slake the thirst of anyone looking for intellectual arguments for or against the FCC’s proposed regulation of the ISPs’ network-management practices. Because the court ruled that the FCC lacked the "ancillary" authority it asserted, the body of the decision amounts to little more than a refutation of the respondents’ argument that earlier Supreme Court decisions provided precedent for the FCC’s claims.

The "legalistic" nature of this decision aside, there is something important here. It is widely surmised (and feared) that, thus rebuffed, the FCC will attempt to get to its desired result – network neutrality, as it’s called – by attempting to regulate ISPs, like phone companies, under Title II of the Communications Act.

But look what’s happening here. On the basis of claims of abuse so slim they’re very nearly invisible, the FCC has proposed to expand and codify that agency’s "Internet principles" in a way that guarantees its regulatory oversight of the freest, most democratic, and fastest-growing communications medium in the country. And for what? Because of fears that Internet providers might look for ways to insulate everybody else from the negative consequences of the actions of a relative handful of bandwidth hogs?

One of the intervenors in this case – Free Press, whose sole reason for being is the subjugation of the commercial media and communications companies to the yoke of government – coined the phrase "Net Neutrality: The First Amendment of the Internet." The reality, as someone put it, is that codified net neutrality is more nearly "The Fairness Doctrine of the Internet."

For now, nobody knows for sure what will happen next – whether the FCC, or Congress, will push ahead in the conviction that this too is an issue of such "transformative" importance the only thing that matters is getting it done. But in this, as in so many things, the wiser course would be to rethink the matter entirely. It rarely happens that government acts more efficiently than the marketplace, and net neutrality is almost certainly no exception to that rule.

Stuart Benjamin: The FCC’s ‘Spectrum Reformer’

Amid their other problems, broadcasters now have a new one: the FCC’s recently appointed Scholar in Residence, Stuart Benjamin, a law school professor at Duke University.  According to an FCC press release, Benjamin will work on “spectrum reform,” among other issues.  The problem that broadcasters have is with some articles written by Professor Benjamin, earlier this year, on that very subject.

One such, “Roasting the Pig To Burn Down the House,” seeks to answer the question being asked by all fair-minded people: “Should we welcome new regulations on broadcasters that will make broadcasting unprofitable?”  And the answer, according to Benjamin, is “yes.”  Or, as he puts it: “Some regulations that would be undesirable standing on their own will be desirable once we factor in the degree to which they will hasten the demise of over-the-air broadcasting.”

In the same piece Professor Benjamin happily acknowledges, in passing, something that broadcasters have argued – namely that some new administrative regulations, like the so-called advisory boards, “could prove fairly costly.”

A few months later, whilst opining on the Volokh Conspiracy blog site, Benjamin gleefully commented on another rueful development, a Supreme Court decision on indecency regulations (FCC v. Fox) that, as he puts it, “makes life worse for local stations” that can’t afford tape delay systems.  As with the added expense of advisory boards, Benjamin sees this too as a good thing.  “Local television broadcasters,” he says, ”have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.”

Never mind for a minute that Benjamin’s comments are informed by what he sees as the inevitable collapse of broadcasting (he gives it only about 20 years to live, even without a nudge), and that he sincerely believes that broadcast TV is not the highest and best use of the spectrum.  The remarkable thing is why the FCC would bring aboard, and give this particular portfolio to, someone with Benjamin’s baggage?

It would be funny if it were a joke.  But as one long-time broadcasting executive put it, it raises real questions about the kind of personnel vetting that’s going on at the FCC.  If views like those that Benjamin has published aren’t enough to disqualify him from appointment to the position he’s just been given, what would it take?  A manual on how to poison station managers?

The dust has barely settled on the government’s years-long campaign to engineer TV’s digital conversion – a conversion that many broadcasters think holds great promise for their industry – and along comes this character, as out of some film noir production, whose ghoulish fantasy is to put broadcasters out of the broadcasting business.

Not to worry, though.  Once broadcasting has been polished off, the FCC can focus all its energy on regulating the Internet.