From the Worst FCC Vote to the Best

It was March 2002 and the Federal Communications Commission (FCC) was on a tear to give the nation’s broadband providers the freedom from government oversight for which they were clamoring. The idea was simple: Pluck advanced telecommunications out of the telecommunications obligations of Title II of the statute, label broadband an information service, and deny the public interest in favor of the special interests. This particular vote applied to cable modem broadband, but the Commission had already issued a notice that it was preparing the same statutory surgery for wireline broadband, which, of course, it subsequently performed. I dissented from the majority’s approval. As I said at the time, this ill-advised decision “places these [cable broadband] services outside any viable and predictable regulatory framework.” Little surprise, then, that the Commission tied itself in knots ever since, trying -- unsuccessfully -- to defend the indefensible. So intent was the Chairman Powell-led majority to ensure that broadband would be forever deregulated that the ruling included a provision saying that even if the courts disagreed and found that broadband services were subject to regulation, the Commission would forbear from enforcing such obligations. (Wait a minute! -- weren’t these the guys who believed in strict construction of the Constitution?)

It was perhaps the worst proceeding I was asked to vote on during my 11 years as a Commissioner -- and, believe me, that’s saying a lot when you think of what those FCCs of 2001-2009 visited upon our telecom and media landscapes. We haven’t recovered yet.

But, 13 years later, a spirit of redemption is in the air. Last week, FCC Chairman Tom Wheeler moved boldly to correct the bizarre classification rulings of his predecessors. He put forward a plan that would bring broadband providers clearly under the consumer-empowering provisions of Title II of the Telecommunications Act. Title II is where consumer protections, universal service, privacy, disability rights, and other important safeguards are housed.

At stake, of course, is the future of the Internet -- its openness to innovation and entrepreneurship certainly, but even more its facilitation of free speech in a democracy that relies on our ability to communicate and discuss with one another the great challenges we face as communities and as a country. Instead of no restraints on the ability of the huge Internet providers to block and throttle content, to degrade new applications, and to favor their own affiliates and deep-pocketed business allies over smaller competitors and citizen sites, Chairman Wheeler has proposed sensible, enforceable, and sustainable rules for an Open Internet. He has put his proposals on the best and only legal foundation able to withstand the court challenge that is certain to come from the mega-companies. (And make no mistake; the FCC will be taken to court whatever it decides, short of complete capitulation to the special interests.)

We haven’t yet seen how each “i” is dotted and every “t” is crossed in the proposal that will be put to a vote on February 26, and many of us would probably have framed a proviso or two a little differently. But the direction is clear and the intent seems pure. This is a huge and monumental step forward. While that 2002 vote may have been the worst ever, the February 26 vote, if successful, will be the FCC’s best in a long, long while -- right near the top on the all-time list.

The general provisions should eliminate most question marks, and there seems to be adequate flexibility so that public interest oversight can evolve as technology and services are sure to evolve in our fast-changing interconnected world. It’s also true that the certainty provided by the proposal brings in its wake a more stable business environment. Business can’t operate with a question mark, as my friend and former boss Fritz Hollings often told me, but when it knows the rules it adapts to the rules -- and continues to do well. Interestingly, cable and wireless stocks went up on the day Chairman Wheeler announced his proposal. So much for another of those industry canards to which we are so frequently subjected! (It used to amuse me, even though it wasn’t really funny, how the big ISP executives would come into my FCC office to tell me how awful things were and then they would fly on their private jets to New York City to assure the investor community how great they were doing.)

The success of the Wheeler proposal depends to a huge extent on enforcement going forward. Implementation has not always been the Commission’s strongest suit. The FCC has had a tendency throughout its history to devote more attention to decisions as they take shape than to their just-as-necessary follow-through. We can’t let that happen here.

…MORE GOOD NEWS

In another big-ticket action, the Commission seems poised to pre-empt two state laws that are retarding the deployment of high-speed broadband to every American. At the behest of the mega-ISPs, several states have passed laws making it difficult-to-impossible for communities and municipalities to build their own broadband infrastructure -- even when the ISPs themselves don’t want to bring service to those areas. That’s because these areas don’t have the cherry-picking potential of the more affluent neighborhoods the big guys prefer to serve. But apparently the ISPs don’t want anyone else building there either, just in case they might want to come back some time in the future. Now two cities have come forward petitioning the Commission to preempt these laws in their states. Congress gave the FCC the authority to eliminate barriers to broadband deployment, such as these lousy, cable-friendly laws. Cities like Chattanooga, TN, Lafayette, LA, and dozens of others have built their own high-speed, consumer-affordable broadband networks. Many others would like to do so.

Chairman Wheeler wants to preempt those laws. And he is leading the way for the Commission to do so. Once the FCC acts on the two petitions before it, other communities will petition for the same rights. This will strike a mighty blow at the nation’s broadband shortfall.

…AND A CHALLENGE

So the news is good regarding the Open Internet and community broadband. The FCC, responding to both its past mistakes and to dramatic changes in the marketplace, is getting back to its primary statutory obligation to bring the most advanced, open, and accessible communications to every one of its citizens, no matter who they are, where they live, or the particular circumstances of their individual lives.

Our country still falls decidedly short when it comes to getting high-speed, affordable broadband into every American home and business. This shortfall is holding us seriously back, as individuals and as a nation. No one can be a fully-productive citizen if he or she lacks the communications tools that comprise today’s most important infrastructure. Our jobs, our education, our health, and so much more are becoming every day more dependent upon these networks. In this new Internet age, we can fulfill our own potential, and the nation’s, too, only if we each and every one are empowered by these mighty tools of economic and social opportunity.

Black History Month is a great time to rededicate ourselves to this great task. It reminds us that we are all in this together and that for the nation to succeed, we must each be able to succeed. We talk so much about declarations of independence, but what the country really needs now is a declaration of inter-dependence. When we share this realization, we make real progress. Dr. Martin Luther King, Jr. reminded us that “The arc of the moral universe is long but it bends toward justice.” These two steps on broadband and the Open Internet, vitally important onto themselves, also plant seeds empowering us to take the next steps toward realizing the justice of Dr. King and the promise of America.