Brown: FCC Chief’s Proposal Does What Congress Wanted

Posted June 8, 2010 at 12:21pm

The fight over the future of open access to the Internet has turned into a public relations war as well as a political football in Congress.

[IMGCAP(1)]Last month, Federal Communications Commission Chairman Julius Genachowski announced his proposal to clarify the agency’s authority to oversee the likes of AT&T, Verizon and Comcast in their critical roles as providers of transport links to high-speed Internet access. The chairman’s approach has the strong support of fellow Commissioners Michael Copps and Mignon Clyburn. Ever since that announcement, however, opponents of the Genachowski proposal have recruited proxies to mount a major public relations campaign of disinformation.

In addition, separate groups of Democratic and Republican Congressmen have communicated their opposition to the Genachowski proposal while others in Congress have supported it. Even civil liberties and civil rights groups have weighed in for or against the proposal, depending on whether they see it as promoting or slowing broadband deployment and adoption.

At issue is how best to restore FCC oversight of the major telephone and cable companies when they provide the transport communications link, or “access,” to the Internet — and who serve as gatekeepers because of their unique role in providing such access. FCC oversight of these gatekeepers has been in doubt because a federal appellate court, in the Comcast v. FCC decision handed down in April, rejected the approach that the agency had implemented until this year.

Genachowski called for a “third way” approach to oversight, using a “light touch” version of the statutes and rules that always have governed the provision of such communications transport services. Major telephone and cable companies are now challenging the FCC’s ability to adopt this approach, while citizens groups that see the Internet as a tool of free expression and high tech companies that need an open Internet to grow and innovate generally support the proposal.

The FCC and the gatekeepers agree on at least one thing: that the regulatory approach in place for a decade prior to Comcast v. FCC benefited everyone, including Internet users, the telephone and cable companies that have spent billions of dollars connecting customers to the high-speed Internet, and thousands of content generators that use the open Internet to disseminate messages and provide goods and services.

The issue is whether and how the FCC should restore oversight of the gatekeepers. The stakeholders dispute what is the best and least intrusive way to proceed.

On this question, much of the argument against the Genachowski proposal creates more confusion than clarity. Stripping away the rhetoric used by the proxy opponents of the proposal, the fact is the gatekeepers that provide transport and access to the Internet, not the FCC, are the ones pressing for fundamental change in the regulatory status quo that has thus far worked so well.

Some proxy opponents argue that the Genachowski proposal foreshadows a government takeover of the Internet. But no FCC commissioner has ever proposed, and no U.S. law would permit, any action remotely akin to government control of Internet content. That is not the aim of the current FCC chairman, nor could it ever be accomplished using his proposal. Moreover, public interest advocates would oppose vociferously any such attempt.

Other proxy opponents claim that Congress already has withheld from the FCC the power to oversee broadband Internet access service at all, even if a gatekeeper were unreasonably to deny access to some consumers, or unreasonably to block or exorbitantly price throughput of a competitor’s content offerings to the consumer. But not even the major telephone or cable providers have publicly advocated this unreasonably narrow view of the agency’s authority to oversee the transmission component of Internet access services. They generally have argued instead that the FCC may have such authority, but that it would have difficulty devising rules to implement it.

The proxies and the engineers of their disinformation campaign want a toothless FCC that would be powerless to address consumer privacy needs, to require that carriers be truthful in their advertising and billing, to steer Universal Service Funds to broadband hookups in high-cost rural areas and impacted urban pockets, or to require that reasonably customized access services and equipment be made available for the hearing-impaired and the blind.

AT&T, Verizon and Comcast have not commented publicly on the specific effects of their surrogates’ arguments. Instead, they seek to change the focus of the debate. Their recasting of the issues is summarized, as well as anywhere, in a May 24 letter to Chairman Genachowski circulated by Rep. Gene Green (D-Texas) and in a May 28 letter circulated by Rep. Joe Barton (R-Texas). Both letters were signed by many House Members under tremendous industry pressure.

Rep. Green’s letter states that Genachowski’s “third way” proposal will create “expanded FCC jurisdiction over broadband” and set up an “unprecedented” regulatory regime. Regulatory “uncertainty,” the letter argues, “will jeopardize jobs and deter needed investment for years to come.”

The Green letter concludes that the Genachowski proposal should not be implemented “without additional direction from Congress.” Similarly, the Barton letter argues, “Whether the country should stray from [the present] legislative posture — which has produced 200 million broadband subscribers in the last 10 years — is a matter best left to Congress.”

Both of these letters in effect purport to maintain the status quo. In this, they are on common ground with the civil rights groups that oppose the Genachowski proposal because of concern that the purported change will deter investment in expansion of broadband to unserved and underserved communities. In fact, however, it is the Green and Barton letters and the civil rights opponents that advocate radical change.

The chief problem with the opposition is that it fails to recognize that the status quo already has been changed. It was dramatically altered by the recent Comcast v. FCC decision, which struck down the agency’s reliance on indirect, or “ancillary,” statutory authority to maintain light oversight of broadband access services during the past decade.

The Genachowski approach would restore the balance with an equally light touch, by relying on alternative provisions of the statute that give the FCC authority to accomplish directly what the appeals court said it could not do indirectly.

Telecom and cable companies say that such provisions are unnecessary for broadband because they will not engage in harmful practices. But for content providers and customers who use the Internet, this is flimsy assurance. It is a far cry from the approach to oversight that prevailed prior to the court decision.

As matters now stand, because of the court decision, telephone and cable broadband access providers can arbitrarily deny access to customers, make untruthful claims, ignore consumers’ privacy concerns, or discriminate unreasonably against competitors’ content offerings. None of these major broadband access providers, and none of their major investors, could reasonably have anticipated this kind of regulatory vacuum.

In 1996, at the dawn of the Internet age, Congress comprehensively rewrote the applicable law to give the FCC wide discretion and flexibility to tailor its regulatory approach, as required by a rapidly shifting communications landscape. Chairman Genachowski’s proposal to restore appropriate regulatory oversight of high-speed Internet access does no more than Congress intended.

Tyrone Brown is the president of Media Access Project and a former FCC commissioner.