Earlier
this week, the FCC filed a Court brief in defense of its open Internet rule that has been
challenged by Verizon and one small wireless carrier, Metro PCS. Verizon claims to support the
Internet remaining “an unrestricted and open platform, where people can access
the lawful content, services and applications of their choice.” It simply objects
to an FCC rule enforcing that same ideal on behalf of the end users and edge
providers who must depend on Verizon for that access every day.
Congress
created the FCC to be the primary authority over interstate “communication by
wire or radio”, which in plain English covers broadband Internet access. Whether or not the FCC currently
sub-classifies broadband as telecommunications subject to Title II common
carrier regulation or as an information service (subject to less regulation),
is an administrative agency call. Congress
could not possibly have addressed broadband access in 1995-early 1996 in the
Telecom Act. It did not yet
exist. However, the statute is
general enough to cover it as a form of “communications by wire or radio”
before you even reach the more specific mandates on “advanced services”, competition,
and radio licensing.
Verizon,
on the other hand, would have the FCC, the Court and Congress believe that
“broadband” does not actually include telecommunications at all. Rather, they
argue it is a wholly new part of the new Internet ecosystem that sprang up only
this century from nothing – as the most popular edge providers did, be they
websites, applications or search engines.
On
the commercial marketing side, however, the Verizon story is a bit
different. The “It’s the
Network” campaign of several years ago underscores the telecom giant’s
appreciation of – and willingness to flaunt – its natural advantage. Its legacy monopoly of network
telecommunications facilities, now upgraded with fiber optics and digital
electronics, are unmatched, enviable and even critical to our economy and
public welfare. But they are a
very different physical and market presence than the cavalcade of competitive
information services that flow over the network infrastructure.
Despite
the FCC’s non-binding Internet
policy statement of 2005 that first established open internet principles in
terms of consumer rights, the agency encountered instances of Internet access
providers blocking lawful content and discriminating against unaffiliated
competing services by throttling or otherwise degrading traffic flows.
Ironically,
if Internet access providers like Verizon had not been so successful at M&A
and consolidation while also winning deregulation from the FCC, things might be
different. There might have been enough surviving broadband access competitors
to leave the FCC less concerned about protecting the rights of their end users
and edge providers. But broadband
access competition has failed beyond duopoly for most American households and
small businesses. So now the
dominant companies try to distract and confuse policymakers and the media, saying
they are actually part of the “Internet ecosystem” that’s so vibrantly
competitive.
Smart
folks, who have studied the statutes and are paying attention to market
realities, know how fundamental the FCC’s open Internet rule is – to the
agency’s own statutory mandates, to the smooth functioning of that ecosystem,
and to the economic growth in this country.
