Net Neutrality: Solving Nonexistent Problems the Old-Fashioned Way

For all the reaction it elicited, Chairman Genachowski’s plan for codification of the so-called net neutrality rules, as suggested in a speech he gave Dec. 1, amounts to too little revealed, much less resolved, to allow for fully confident assessment.

This said, it’s not too early to observe that any public policy that is roundly condemned by Free Press, the Media Access Project, and the Nation magazine can’t be all bad.  And condemn it they have.  Under headlines like “Is FCC Peddling Fake Net Neutrality?” and “FCC Chair Genachowski’s ‘Fake Net Neutrality’ Scheme Threatens Internet Freedom, Digital Democracy,” the left’s unhappiness is as loud as it is music to the ears.

On the other hand, the chairman’s proposal has also attracted heavy fire from members of Congress, many but not all of them Republicans, and from the two Republican commissioners at the FCC.  In Congress, the general animus centers on the feeling that the FCC should at least consult with, if not defer to, the members about such things, while Republicans are especially angry that the chairman’s plan anticipates action before the newly elected members of the House and Senate are even seated.

Meanwhile, the service providers are somewhat divided, with some of them content to wrap things up in a way that falls far short of what they had feared, while others are troubled by the apparent lack of a sunset provision, and by the unsettled nature of many important details.

So philosophy on parade it is not.  It is, instead, equal parts partisan politics, an acknowledgment of the way the world works, and 100-proof deal making.  As such, it’s unsatisfying – like taking a shower with your socks on – but it’s not a complete surprise.  As reported here, it’s always been clear that Genachowski had the inclination, and the votes, to proceed with some kind of “net neutrality” scheme, even as it also has looked ever more problematical for him to go the whole nine yards, as in Title II “reclassification.”

More than this, there are aspects of the apparent plan – like its embrace of consumption-based billing – that are deeply satisfying.  It wasn’t all that long ago that Time Warner Cable had to abandon plans, in consequence of noisy opposition from the usual troglodytes, to do some trials of this kind of thing.  Charging more of those who use more is the way we price most things, of course, but that didn’t prevent groups like Free Press and Public Knowledge from piling on in opposition to TWC’s plans, nor from gloating when the company withdrew its proposed trials.

For now, the whole of this matter can be reduced to some questions, not all of them answerable.  Is Title I regulation better than Title II?  Yes.  Is this the best result one could reasonably expect from this FCC?  Probably.  Is it wise public policy?  No.  Will the FCC’s action, whatever it is, be the end of the matter?  Depends.  If, sometime in the future, a party with standing decides to sue the agency on the claim that it lacks authority to regulate the Internet in this way, it will have a viable argument with some case law to back it up. And if that lawsuit were to be resolved in a way that (once again) ordered the FCC out of the Internet regulation business, well, so much the better.

                                                
The opinions expressed above are those of the writer and not necessarily 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.
 

Sen. Franken Opines on Net Neutrality (or Something)

There’s no intelligent life elsewhere in the universe, but chowderheads abound there.  We can infer this from the cosmologists’ predictions of Earth-like planets, and from the way our elected leaders demonstrate the density of Homo sapiens.

Take, for instance, Sen. Al Franken.  In an opinion piece written last week for CNN.com, the gentleman unburdens himself of what may be a record number of non sequiturs per column inch.  For those of you who’d like to judge this for yourself, here’s the whole of the thing as written.

For those who haven’t got the patience (and you know who you are), here’s an abridged version with commentary.

 “Our free speech rights,” says Al, “are under assault — not from the government but from corporations seeking to control the flow of information in America.”

(And what’s the evidence of that?)  “Telecommunications companies want to be able to set up a special high-speed lane just for the corporations that can pay for it.”

(And what has that got to do with our free speech rights?)  “Perhaps,” says Al, “those companies will discriminate based on whose political point of view conforms to their bottom line.”

(And what’s the evidence of that?)  “In the 1990s, Congress rescinded rules that prevented television networks from owning their own programming,” and afterwards the networks started favoring their own entertainment programs.

(And this is evidence that telecom companies will discriminate on the basis of non-conforming political views?)  With all these mergers “we’ll end up with a few megacorporations in control of the flow of information.”

(And so, Senator, what’s the moral here?)  “Net neutrality … it’s the most important First Amendment issue of our time.”

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.

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.

Net Neutrality in Retreat?

If you’re a “net neutrality” critic, and dabble in schadenfreude, things are looking up!  First, there was oral argument in the D.C. Circuit Court of Appeals (Comcast v. FCC), during which the panel clearly appeared to reject the notion that the FCC had authority to pursue its ambitions in this regard.

Then, just last week, there was the White Paper filed at the FCC on behalf of Time Warner Cable by constitutional scholar Laurence Tribe, arguing that net neutrality as proposed is likely unconstitutional under the First Amendment.

Last but not least is the report, debated but out there, that the Administration is cooling on net neutrality because it fears that it might depress the amount of capital the private sector invests in broadband deployment — an argument also made here — thereby defeating the goal of ubiquitous broadband access and stunting job growth as well.

One can only imagine the anguish such a turn would engender in the net neutrality crowd.  A conflict between Free Press and the Administration?  How could they reconcile it?  What manner of prose could they summon to express their innermost feelings?  The “vituperative retreat” perhaps, or maybe something more stylish, like an Olbermannesque commentary.  Perhaps they’d initiate, simultaneously, 100 diary threads on DailyKos.

Well, we don’t know for sure but we can dream.  What we do know is that Chairman Genachowski’s plan of extending and codifying the FCC’s "Internet principles,” announced with such confident fanfare not so long ago, is now coming under heavy fire from lots of quarters.

Laurence Tribe’s brief is particularly noteworthy, both for its line of argument and for the road map it lays out for a court challenge on constitutional grounds, should net neutrality be formally adopted.  To quote just one of several poignant passages therein:

Net neutrality proposals rest on the mistaken premise that the constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

That Tribe was an active supporter of the candidacy of President Barack Obama, and served as a judicial adviser to Obama’s campaign, suggests that he has the Administration’s ear on such matters.  This, coupled with speculation about the reason for the departure of Susan Crawford, a strong proponent of net neutrality, lends weight to the notion that the Administration may be reconsidering its erstwhile support of net neutrality regulation.

If so it would just be another example, as H.L. Mencken put it, that for every complex problem there is an answer that is clear, simple, and wrong.

Net Neutrality: Whose First Amendment?

It shouldn’t come as any great revelation that when the government proposes regulations affecting the media, there very well might be implications for the First Amendment.  Raising such concerns, and then examining their validity, is a normal part of the regulatory process.

Kyle McSlarrow did just that last Wednesday in a speech to a Media Institute luncheon audience.  As president and CEO of the National Cable & Telecommunications Association,  McSlarrow was rightly concerned that the FCC’s proposed regulatory enforcement of “net neutrality” would impair the First Amendment rights of Internet service providers, especially to the extent that they offer other types of programming services apart from Internet access.  He also noted that such rules could impair the free speech of start-up content providers who are willing to pay extra for priority distribution of their content to better compete with established entities, and for others who use the Internet.  

The response to McSlarrow’s speech by many proponents of net neutrality regulation was nothing short of remarkable for its rancor.

The underlying assumption of this net neutrality crowd and their ilk was the tired old mantra: Big media are bad.  Corporations are bad.  Corporations don’t deserve First Amendment rights.  The bloggers from this camp (including a former Free Press lawyer) seemed at once incredulous and offended that anyone (except maybe Washington lobbyists) could assert with a straight face that media companies are speakers with First Amendment rights.  

The other underlying assumption involves the revisionist view that the First Amendment is a tool the government has an obligation to use affirmatively to promote diversity of speech, rather than what it was created to be: a protection against government censorship of speech.

It would be bad enough if the reactions to McSlarrow’s speech suffered only from flawed assumptions like these.  That wouldn’t even be so terrible, because one can always challenge another’s assumptions and hope to engage in something resembling a serious debate.

It’s possible to do that, for example, with the response offered by the ACLU, which noted that ISPs do have First Amendment rights when they’re providing their own content, but should function as common carriers (like phone companies) when they’re carrying the content of others.  Whether tiered pricing for different levels of service amounts to discrimination and implicates free speech is at least something that can be debated.    

But the level of vitriol is running so high among many in the net neutrality crowd that some writers are totally twisting what McSlarrow said, and attributing to him words he never uttered and positions he never (and I believe would never) take.  For example, blogger Marvin Ammori (with the Free Press connections) wrote: “According to the NCTA’s Kyle McSlarrow … Americans (like you) don’t have rights to access or upload content on the Internet.”  FALSE.  McSlarrow never said any such thing.  Ammori calls McSlarrow’s reasoning “silly” and “offensive.”  But if anything is silly and offensive, it is Ammori’s fabrications.  

One is reminded of the Cold War, when the Soviet propaganda machine excelled at “disinformation” – false information which, if repeated enough and eventually picked up by a credible outlet, would be regarded as true.  Ordinarily I wouldn’t bother commenting on the more egregious responses to McSlarrow’s speech, because they’re just not worthy of serious comment.  But I’m taking the time because so much of what has been written needs to be identified for what it is – disinformation – that will only stifle meaningful debate and do a disservice to the First Amendment.   

And while we’re talking about this constitutional guarantee, let’s not forget the big picture, which can easily become obscured by the details (and heat) of the moment.  Do we really want the FCC regulating a whole new realm – the Internet – which heretofore has been a safe haven for free speech?  Virtually everyone in the net neutrality camp seems to think this is a great idea.  I do not.  In fact, I think it’s a terrible idea.  For speech to be truly free, government regulators should be kept as far away as possible, whatever the medium.  Maybe this is where the real debate over net neutrality and the First Amendment should focus.       

Orts and All

FCC’s "OpenInternet"

The FCC website, now in Beta, called OpenInternet.Gov is interesting.  It’s not great, but it’s better than you might expect and sort of refreshing.

Ostensibly given over to a public discussion of the “important issues facing the Internet,” the site’s primary focus is on one issue facing the Internet: Chairman Genachowski’s plans to extend and codify the FCC’s so-called Internet principles.

Unlike the FCC’s main site, which is as unreliable as it is difficult to navigate, OpenInternet actually works pretty well.  Much more importantly, it’s attracting, in addition to fans and the usual sycophants, a fair number of people who are critical of the Commission’s plans.

The public’s views are communicated in two ways, through the posting of opinions on the “Join the Discussion” page, and by posting comments there and on the “OpenInternet Blog” page.  Check it out.

Love That AMC

Close observers of this blog will remember an earlier piece written in appreciation of the impressive AMC series “Breaking Bad.”  Yesterday’s was the penultimate show this season of the other award-winning AMC series, “Mad Men.”  And coming to AMC on Nov. 15 is a miniseries remake of the classic 1960s series, “The Prisoner.”

All of which begs the question: What’s the deal with AMC?  Are they trying to make us love them?  If so, they’re succeeding.

Hugo Chavez and Friends

Many of the editors at a magazine I used to work for had “laws.”  One’s law was “never go west of Fifth Avenue unless you absolutely have to.”  Another’s was “the love of evil is the root of all money.”  But the one that I recall most often was “when you find a good thing run it into the ground.”  (The same person who authored that law once told me that in order to handle New York cabbies you need to have iron lungs, a nasty disposition, and a law degree, and he had all three.)

Anyhow, I’m reminded of the “good thing” law whenever I reflect on the endless joy it gives me to say something truly unkind about people who’ve earned it.  It’s in this spirit that I’m pleased to present this week’s Trousered Ape Award to Sean Penn, Danny Glover, and Oliver Stone (who also receives a Golden Homunculus), for their support of Hugo Chavez at precisely that moment when he’s cracking down on free speech, and every other human right, in Venezuela.  One can only wonder where we’d be, as a nation, without such people.

Chairman Genachowski’s Modest Proposal re Net Neutrality

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.

Obama and the Media, Part II

Apart from the economic effects of President Obama’s fiscal and regulatory policies, there arises the question of how “business friendly” he may prove to be.

The media and communications sector plays a large and important role in the general economy, and the new Administration’s stance on issues that matter to this sector may answer that question.

As mentioned in Part I of this piece, three such issues are consolidation, content controls, and “network neutrality.” The first two were described in the earlier post, today’s looks at the third.

Like beauty, “net neutrality” seems to exist more in the eye of the beholder than in any objective sense. This can be seen in the difficulty that attends even a simple definition of the term, and in the disparate opinions expressed for and against it.

But what can’t be disputed is that passage of any kind of net neutrality legislation would mean that government had acquired a new role in regulating the Net, with consequences certain to be both intended and unintended.

This expansion of the role of government, and concomitant reduction of the private sector, is of course no concern to groups like Free Press who, true to the “class struggle” mindset of their founder and president, worship everything governmental.

But it is a considerable concern to those corporations and investors whose labor and capital are indispensable elements in the further buildout and efficient functioning of the Net.

And this isn’t even to mention the problem, identified by the late Ithiel de Sola Pool, of the risks to free speech when a heretofore unlicensed and unregulated medium (his example was print), evolves into one that is licensed and regulated.

Given the paucity of evidence that broadband service providers have abused their roles in re  censorship or quality of service issues, and that in fact all of them have taken steps publicly and privately to allay such concerns, the wise and business-friendly thing would be for Obama and his people to declare victory in the campaign for net neutrality, disclaim any need for legislation, and move on.