How Clever is That?—More Thoughts on the Google-Verizon Deal

As I reflect on the Google-Verizon “Legislative Framework Proposal” I increasingly marvel at its cleverness. First consider the title. As legislation, much less a bill, appears quite unlikely for the foreseeable future, Google and Verizon actually have targeted the FCC. Of course if the ventures had gone by the book they would have petitioned the FCC for rulemaking and the Commission would have invited comments from interested parties with an eye toward generating a complete evidentiary record. That won’t happen in this case.

Others have noted that the managed services exception creates a gaping loophole. When I wrote about allowing ISPs to offer “better than best efforts routing,” I considered ad hoc, special events, such college basketball tournaments, not a bifurcated Internet. Additionally I specified that ISPs should not so partition their networks—even if it is their property—in such a way as to guarantee that “best efforts” regularly results in dropped packets and degraded service. The deal exempts “additional or differentiated services” “distinguishable in scope and purpose from broadband Internet access service.” With that kind of definition we can expect disagreements. Consider how stakeholders manipulate words like “robust competition.”

The proposal contains the following language that appears to differentiate between oversee and regulate. The FCC “would have exclusive authority to oversee broadband Internet access service,” but “[r]egulatory authorities would not be permitted to regulate broadband Internet access service.” Are Google and Verizon trying to make a metaphysical distinction between regulation with a direct statutory link and stakeholder consent to oversight? Or does the deal have a missing first word in the second sentence: State?