Despite vowing to eschew involvement in the latest Network Neutrality drama, I cannot sit back and let stand the resumption of the distorted gospel preached by the anti-network neutrality crowd. This group has legitimate criticisms, many of which I have tried, via hundreds of law review pages—to analyze, and even endorse, in specific instances.
For example, see Freedom to Discriminate: Assessing the Lawfulness and Utility of Biased Broadband Networks, 20 VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW, 655-708 (2018); https://scholarship.law.vanderbilt.edu/jetlaw/vol20/iss3/2/; Grey nuances in the black and white debate over subsidized Internet access, 41 TELECOMMUNICATIONS POLICY 1017-1026 (2017); http://dx.doi.org/10.1016/j.telpol.2016.10.002; Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management, 26 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL, 71-102 (Fall, 2015); http://www.fordhamiplj.org/publications/network-neutrality-and-consumer-demand-for-better-than-best-efforts-traffic-management/; Internet Protocol Television and the Challenge of “Mission Critical” Bits, 33 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL, No. 1, 47-87 (2015);http://www.cardozoaelj.com/wp-content/uploads/2014/01/Frieden-FINAL.pdf.
Even current FCC Commissioners, who
ought to know better, will trot out the same clearly untrue parade of
horribles.
Network
neutrality regulation will not create a suffocating Internet rate regulation
regime. The Democratic majority has
clearly exempted broadband internet access from Title II common rate
regulation. By the way, Title II still explicitly applies to wireless telecommunications,
like cellphone service, and no one can credibly claim that carriers are
severely constrained by overpowering FCC
oversight. Network neutrality orders have
always applied light-handed regulatory oversight.
Title II of the Communications Act does not impose some atavistic, old school “public utility” regulation. Despite the growing efforts of the Supreme Court to prevent regulatory agencies from responding to changed circumstances, the FCC has frequently recalibrated its Title II regulatory toolkit over time. My prior blog post https://telefrieden.blogspot.com/2023/10/upcoming-limits-on-fcc-statutory.html noted that an expansive reading of West Virginia. v. EPA, https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf might prevent the Commission from streamlining and reducing regulation, unless the Court can craft language that creates an exemption for deregulatory initiatives that require a new and improved statutory interpretation.
A doctrinal and wrong-headed insistence
on legislative clarity, ironically could prevent the FCC from improving
regulations and make them better in light of fast changing technological and
marketplace conditions. Bear in mind
that the last major revision to the Communications Act of 1934, took place in
1996, a time preceding the emergence of a mission critical Internet for most
people. It appears that some of the six
conservative Supreme Court Justices now expect Congress to act early and often
in revising the Communications Act. If Congress
fails to act—and we surely can expect that--then apparently the FCC is powerless
to respond to changed circumstances.
Over several decades, I have tried
to explain that much of the problems in applying statutory definitions to
Internet access, stems from the FCC’s insistence that a single classification
must apply. The FCC created mutually exclusivity
between telecommunications services and information services in 1998 in
response to a letter of inquiry from a Senator Ted Stevens. See Federal-State
Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13
FCC Rcd 11501(1998).
Nothing in the Communications Act
prevents the FCC from recognizing that technological and marketplace
convergence creates service offerings that combine basic and enhanced,
telecommunications and information services. Our wireless handsets offer basic
plain old telephone service, texting, which used to be a legacy telecommunications
service, and other services that combine data processing/information services
with telecommunications carriage.
The FCC
does not have to insist on an either/or dichotomy, Nothing in the Communications Act mandates
this. We have had to tolerate decades
long regulatory toggling between telecommunications service and information
service, because the FCC cannot wrap its head around the reality that
convergence requires a nuanced and admittedly more complicated blend of
definitions. Sometimes the statute does
not even provide a definition, such as “advanced telecommunications capability.”
The FCC interprets these words to include broadband, but the Republican
Commissioners want to ignore the word telecommunications and instead insert
information service. This sure looks
like overreaching, legislating by unelected bureaucrats so reviled by the
right. Then again, some of them want to
convert social networks into involuntary common carriers to deny them any sort
of First Amendment editorial freedom.
Lastly (I
hope!), we really ought to laugh at the false notion that a single regulatory
initiative will exclusively impact the aggregate level of infrastructure
investment carriers will make in a given year.
Former FCC Chairman Ajit Pai preached this gospel relentlessly and it
became a truth for anti-network neutrality advocates. One has to ignore the
carriers’ business plans and the ebb and flow of technology investment as a
function of innovation and product life cycles.
To believe the network neutrality
investment disincentive canard, one would have to discount the billions
invested in new 5G spectrum and network upgrades. I expect sponsored, voodoo economists to “prove”
a decline in carrier network investment going forward. Should aggregate investment actually decline,
this outcome more likely results from the winding down of 5G investments, not
the onset of innovation and investment stifling regulation.
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