American Enterprise Institute

[Commentary] The network neutrality opinion may be the most significant court decision in the telecom space since the Supreme Court’s Brand X decision a decade ago. In a highly deferential decision, the DC Circuit court ratified the Federal Communications Commission’s controversial reclassification of broadband Internet access as a Title II common carrier service, setting the stage for a broad regulatory agenda and permitting greater oversight over the Internet ecosystem. Given the stakes, it is unsurprising that the agency’s opponents refuse to throw in the towel, instead vowing to take the case to the Supreme Court. But will the high court take an interest in the case? If the Justices are interested in the case, there is one important legal question they may find worthy of their time and it is rooted in the deference that was key to the agency’s victory: the scope of the “major questions” exception to the Chevron doctrine.

[Commentary] Some advocates don’t think the network neutrality rules proposed by the Federal Communications Commission allowing Internet service providers to enter into direct carriage agreements with application or content providers like Google and Netflix go far enough. The New York Times editorial board raves that Title II will “prohibit phone and cable companies like Verizon and Comcast from engaging in unjust or unreasonable discrimination against content.”

Title II treats telephone services as a common carrier. It is not about content, it is about prices -- namely the regulation of prices. Fast and slow lanes are permitted under Title II -- or, to say it the correct way, they are not prohibited under Title II.

[Boliek is an associate professor of law at Pepperdine University School of Law]

[Commentary] While there’s been a lot of talk about uncertainty hurting the economy, in fact, there’s been too little uncertainty in the economy.

One of the worst anti-innovation efforts is being fought out at the Federal Communications Commission, where extremist proponents of net neutrality are pushing the agency to apply the old “Title II” monopoly telephone regulations to the digital world.

The US invests more than anyone in broadband networks, cell towers, and data centers, and it generates and consumes twice as much Internet traffic per Internet user as Japan and three times that of Western Europe. Most of the world’s biggest Internet firms are American, and we’ve got most of the new upstarts, too, precisely because we’ve encouraged disruption in this sector.

One could hardly devise a more devastating blow to innovation than allowing Washington to wrap its regulatory arms around the Net.

[Swanson is president of Entropy Economics]

[Commentary] After its widely expected loss in the US Supreme Court, Aereo announced that it would keep trying to avoid paying market prices for content under a new “Plan B.”

After years of arguing that its inefficient system for retransmitting broadcast TV content over the Internet could not be a “cable system” under § 111, Aereo now argues that it can -- because the Supreme Court said so.

Aereo’s “Plan B” argument is far more suspect than a scan of § 111 might suggest.

For several reasons, no bill reauthorizing the direct-broadcast-satellite (DBS) systems compulsory licenses is likely to “save” Aereo, nor is any federal judge who is bound by the Second Circuit’s WPIX v. ivi decision, in which the Second Circuit held that Internet retransmission of broadcast TV could not qualify for the cable-compulsory license.

[Commentary] In July, the Office of Science and Technology Policy and the National Economic Council requested public comments on the upcoming update of the Strategy for American Innovation.

While the notion of innovation as a market good is debatable, the common theme linking national innovation strategies, almost without exception, is the unquestioned assumption that the STEM disciplines (Science, Technology, Engineering, and Mathematics) are central to this policy endeavor.

Investment in educating and developing STEM workers, funding STEM research activities, and facilitating the advancement of the resulting outputs into patentable products and thriving businesses are central tenets. However, one of the challenges for innovation is that transforming STEM research into the commercial activities that will underpin growing economic prosperity requires a special sort of entrepreneurial human capital that includes both STEM knowledge and business acumen.

[Howell is general manager for the New Zealand Institute for the Study of Competition and Regulation]

[Commentary] Google and Yahoo announced that they will both be creating secure, encrypted, spy-free email services by early 2015. One reason e-mail has not been encrypted until now is that there has not been market demand for it.

Living in a post-Snowden world where serious attention is paid to who is seeing what and why may have the positive effect of Internet operators, as they differentiate their levels of security services.

I look forward to the Internet giants implementing even more tools to keep our communications safe from hackers and governments. Hopefully the next step for these companies will be to train their over 600 million users in multi-factor authentication, a tool that would add another level of protection.

[Tews is Chief Policy Officer at 463 Communications]

[Commentary] While interconnection mandates may appear at first blush to be costless, they are not. Rather, as with virtually every other economic institution or arrangement, interconnection has costs as well as benefits.

Such costs may take the form of reduced incentives for network owners to invest in their networks, the loss of specialization that accompanies forced standardization, or various other forms. That is why interconnection and interoperability are not ubiquitous.

In the Internet environment, the value of interconnection is very high -- which is why IP interconnection has been both ubiquitous and voluntary from the Internet’s inception -- but that does not mean that interconnection is always the right answer. The question for policymakers is whether the task of balancing the benefits of interconnection against the costs should as a general matter be made by administrative process, or by the marketplace.

[Commentary] In the well-framed photograph, the brown eyes of a female crested black macaque stare straight into the camera, and her lips curl back into the broad grin of someone who knows that she has just snapped what might become an Internet phenomenon.

According to well-known wildlife photographer David Slater, the now famous “monkey selfie” came about when a troop of macaques found and began playing with his cameras. Meanwhile, outside the jungle, this monkey-selfie has caused some of the macaque’s (theoretically) more advanced relatives to work themselves into one of the Internet’s periodic copyright-related tempest-in-a-teapot situations.

Meanwhile, mass Internet piracy on an unprecedented scale -- almost all of it perpetrated by humans against undeniably human creators who own perfectly valid copyrights – will continue, at least until we choose to resume respecting the fundamental human rights of all (human) creators.

[Commentary] The House Commerce Committee concludes another round of public commenting on its effort to update the Communications Act of 1934. The focus of this round was what role Congress and the Federal Communications Commission should play in the market for interconnection of networks.

Daniel Lyons and Gus Hurwitz joined scholars from the Free State Foundation in their comments, highlighting the importance of flexibility and responsiveness in interconnection markets. They argue that interconnection among IP networks is very different and more technical than the interconnection between ILECs that are governed by the 1996 Act.

In my submission, I provide two stories of deregulation from Denmark.

[Layton is a researcher at the University of Aalborg, Denmark]

[Commentary] The Internet Corporation for Assigned Names and Numbers (ICANN) argues that it cannot be ordered to transfer a domain because the United States government, not ICANN, is really in charge.

The US government is proposing to allow its agreements with ICANN to lapse, however. At that point, ICANN would become autonomous and accountable only to its Board of Directors. ICANN would seemingly lose this line of defense, and thus invite the courts to hold it responsible for domain allocation.

This suggests that Department of Commerce oversight is holding off the unhappy possibility that every US District Court would be free to give orders to ICANN. Perhaps we should not be so quick to give up the current legal arrangements.

[Rabkin is a professional software engineer]