Tales of the Sausage Factory

[Commentary] For those following the debate around whether to classify broadband access service as a “Title II” telecommunications service under the Communications Act of 1934, you may have heard about a thing called “forbearance.”

For those unfamiliar with telecom law lingo, “forbearance” refers to a special magic power that Congress gave the Federal Communications Commission as part of the Telecommunications Act of 1996 which gives the FCC the power to say “you know that specific provision of law that Congress passed? We decide it really doesn’t make sense for us to enforce it in some particular case, so we will “forbear” (hence the term ‘forbearance’) from enforcing it.” Or, as the DC Circuit explained in a case called Orloff v. Federal Communications Commission, once the FCC invokes forbearance and decides to forbear from a particular statute, the statute for all practical purposes disappears.

For those familiar with the argument, you will also know that the anti-Network Neutrality camp argues that getting the FCC to forbear from any rule is such a horribly complicated and detailed market-by-market analysis that the FCC couldn’t possibly grant the kind of broad, nationwide forbearance we would need to make Title II workable. As someone who actually lived through the 8 years of the Bush Administration and saw almost every single pro-competition provision of the 1996 Act stripped away by forbearance proceedings, I can only say “hah, I wish.”

[Commentary] The Supreme Court stubbornly refuses to address Red Lion. Not only did Minority Television Project provide the opportunity to overrule Red Lion and abolish all those pesky ownership limits and public interest obligations, it framed this as an opportunity to further expand Citizens United.

How could the majority possibly resist, especially given the groupthink that the Supreme Court is simply lusting to overturn Red Lion and totally deregulate the broadcast industry at the first opportunity? And yet, somehow, they resisted. The FCC’s authority to impose broadcast ownership limits (and other spectrum ownership limits for that matter) remains not only intact, but subject to the lenient “rational basis” standard of scrutiny.

[Commentary] So for those of you first timers, and those of you who have gone so long without a contentious Federal Communications Commission meeting you’ve forgotten how it’s done, I’ve prepared this helpful guide on “what is an FCC meeting and what are the big items up for grabs.”

By law, the FCC must meet at least once each calendar month. Under the Government In The Sunshine Act, all Commission meetings are open to the public. If you plan to attend, you will need government-issued ID to get into the building. The meeting on network neutrality/open Internet starts at 10:30 a.m., but expect crowds, hopefully protesters as well. Sitting in front of the Commission is a table where sit the FCC staff charged with presenting the item.

The relevant staffer will read a summary of the item. The staffer will close with “staff request editorial privileges” which is a code word for “we may not actually have finished writing the item, especially if there was a bunch of last minute negotiation. We promise to get it written and circulated to all of you for sign off before we issue it to the public.”

Because of this, it may take some time for the actual item voted to appear on the FCC’s website or be publicly available. The Chair will then open the floor to each Commissioner in turn, by seniority, to make comments/read an official statement.

The batting Order is: Commissioners Mignon Clyburn, Jessica Rosenworcel, Ajit Pai, Michael O’Reilly. (It is coincidence that at the moment this is divided by party, with the Republicans all junior to the Democrats by seniority.) Then the Chairman will have the opportunity to make a statement. After that, the Chairman calls for a formal vote and each Commissioner votes.

The public does not get to speak. This is not an “open meeting” like a town hall where the FCC gathers evidence. This is like a floor vote in Congress. You get to watch the action but the outcome is usually determined in advance.

[Commentary] Federal Communications Commission Chairman Tom Wheeler caused quite a stir when he circulated a new Notice of Proposed Rulemaking on network neutrality.

The proposed rule moves away from generally prohibiting wireline broadband providers from offering “paid prioritization” (aka Internet “fast lanes”) to explicitly permitting wireline providers to offer paid prioritization subject to conditions designed to guard against anti-competitive and anti-consumer conduct. To employ a crude analogy, network neutrality supporters see Chairman Wheeler’s proposal as roughly the equivalent of teaching the rhythm method in sex ed, while opponents are outraged that Chairman Wheeler would teach anything other than pure abstinence.

But we as consumer advocates must reiterate to members of Congress in both parties, and to the White House, that because the DC Circuit has made it clear that the only way to have network neutrality is to classify broadband access as a Title II telecommunications service that is what they must do. We must show not merely the 3 Democrats on the FCC, but the rest of the political class in Washington, that Title II reclassification is not a “nuclear option” or “third rail” but a necessary and well supported prerequisite to a healthy Internet policy.

[Commentary] At the press conference following the Federal Communication Commission (FCC) March 31 Open Meeting, FCC Chairman Tom Wheeler made the following observation: “Interconnection is part of the Network Compact. ‘Peering’ is just a $3.50 word for interconnection.” Personally, I think most people are totally misreading this.

Chairman Wheeler’s statements make it look more likely to me that the FCC will start looking closely at the Internet peering market, not less likely, especially as part of the Comcast/Time Warner Cable deal.

l rant at considerable length that (a) Chairman Wheeler is right, this is not a “network neutrality” issue, but the same goddam interconnection issue that we have struggled with for more than a hundred years in every networked industry from railroads to electricity to broadband; (b) The FCC needs to actually look at this and study it and understand how the market works before it makes any decisions on what to do; and, (c) While Chairman Wheeler is not saying -- in any way, shape or form -- that he actually plans to do anything before he has real information on which to base a decision, he is signaling -- for anyone actually paying attention -- that he is, in fact, going to actually look at this as part of his overall transition of the agency around his “Fourth Network Revolution” and “Network Compact” ideas.