The FCC Through the Looking Glass: Broadband is What We Say It Is

June 22, 2010

By James Gattuso
The Technology Liberation Front

“When I use a word, it means just what I choose it to mean — neither more nor less,”  Humpty-Dumpty said.     The famous egg could have worked for the Federal Communications Commission, which today took the first step toward re-defining broadband service as telecommunications.

 The decision comes only two months after a federal court — rather definitively – ruled that the agency had no authority to apply net neutrality rules to Internet service providers.  But it only took a few weeks for Chairman Genachowski to come up with a plan B:  re-classifying broadband service as telecommunications service.   At today’s meeting, the Commission — on a 3-2 vote — adopted a notice of inquiry on doing  just that.   Never mind that the initial that broadband is not telecom was the result of a years-long inquiry by the Commission.   If the FCC says a computer is really a telephone, then it is.  Lewis Carroll would be proud. 

But Chairman Genachowski is not the Red Queen, and despite the decision today is still far from his stated goal of addopting what he calls open access regulations (formerly known as net neutrality rules).   Opposition to the plan has been surprisingly fierce — not just from the firms to be regulated, but from Congress, including many Democrats. All told, as counted by Commissioner Robert McDowell in a strong dissent –  some 291 members have expressed concerns about the proposal.    Not only do these members see possible economic harm from these rules, but also see the FCC as intruding on their law-making turf.   Economic theories may come and go on Capitol Hill, but nothing can rile up a congressman more than elbowing in on their jurisdiction.   Especially if that elbowing comes from an agency considered (however incorrectly in a constitutional sense) a creature of Congress.

 That’s only the start of the troubles.  Even if the inquiry is  is finalized, it will still face scrutiny by the courts, which are apt to look at such linguistic gerrymandering by the FCC skeptically.  

For these reasons, the FCC may be in for a great fall.

It may take years, however, for all this to work itself out.   And in the meantime, Internet providers and users will face uncertainty over the future of their services and their investments.   That’s the real cost of today’s move.  And how to get out of this deepening rabbit hole is far from clear.

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