The FCC Open Internet rule is about consumer and end user
access to everything Americans want on the Internet. It is not about big edge providers’ access to any
particular end users. Verizon has
successfully twisted this case upside down as if edge providers like Google and
Facebook and Netflix were the only customers that matter. While online platforms both large and small are enterprise
broadband customers of Verizon and other telecoms, consumer and business end
users purchase their own Internet access connections from Verizon or AT&T
or their cable provider. And it is
these broadband Internet access customers that the FCC open Internet rule is
designed to protect in the public, not private, interest.
It is a very old fashioned notion for Verizon to suggest
that somehow edge providers should pay for terminating access to the end users
that have called up their services online. Even in the voice telephony world, terminating access
charges have all but been phased out completely. They are a vestige of monopoly. By demanding
freedom to seek new rents from popular online platforms, is Verizon conceding
its monopoly with respect to its Internet access customers? Now that would be news.
And it would mean online start-ups and entrepreneurs would
gradually become walled off from end users in a relative slow lane for websites
that Internet access providers do not consider revenue or profit centers.
Former FCC Chairman Genachowski worked his team hard on
crafting an alternative to the relatively recent FCC classification of
broadband Internet access as NOT a telecommunications service. Instead of leaving broadband
Internet access as a totally unregulated information service, thereby ignoring
the primary importance of physical network connections, the Genachowski FCC
crafted a “third way” approach in which Internet access would be classified as
telecommunications, but without the rate regulation and other baggage that
applied to all voice, data and video transmission services up until 10 years
ago or so.
Unfortunately, when push came to shove in late 2010, the FCC
became intimidated by our two most dominant phone companies and abandoned its
thoughtful and forward thinking approach to open Internet access in America. Instead of embracing the “third
way,” it adopted an open Internet rule based on a far weaker choice of
statutory authority in the Telecommunications Act. No wonder the federal Justices who heard Verizon’s
challenge to the rule this week are so confused and frustrated. The Telecom Act is technology
neutral and clear statutory authority is there in Title II governing the
telecommunications services that support Internet access, but the agency did
not use it! They maintained the
fiction that broadband network access connections are themselves (unregulated)
information services, more akin to AOL than a physical phone or fax line. That is not sustainable without
rendering the FCC irrelevant to Internet access.
Nondiscrimination rules are not only permissible under the
Telecom Act for internet access connections, but were in force and effect at
the birth of the Internet and boosted its widespread popularity in the 1990s
and a few years into the 21st century. It was only the FCC’s questionable new classification
of Internet access connections as unregulated information that changed that
legal scenario and caused Chairman Powell to adopt legally unenforceable
nondiscrimination “principles” in a 2005 policy statement instead. Now that broadband Internet
access is as critical to most Americans as phone lines once were, that interim
classification is untenable and may need to be revisited and reversed by our
new FCC.
