Sunday, May 02, 2010

Net Neutrality: Chairman Genachowski's Wagon Train Moment

Almost everything that can be said about the FCC's proposal to adopt new rules governing the practices of Internet service providers (ISPs) has been said – at least for now. My own post-Comcast decision position is that, if a Commission majority is determined that some form of Internet regulation is necessary or advisable, the agency should work with Congress to amend the Communications Act to give the Commission circumscribed authority to adjudicate complaints alleging that ISPs possessing market power have engaged in practices that cause consumer harm. You can read the comments here that I filed with the FCC urging this approach. I also commend to you the recent op-ed by former FCC Commissioner and Free State Foundation Distinguished Adjunct Senior Fellow Deborah Tate in which she declares: "Without evidence of any real threat of discriminatory treatment by Internet providers that harms consumers, the effort to adopt net neutrality regulations is a troublesome distraction."

What moves me (metaphorically at least) to pick up my pen today is the sense that FCC Chairman Julius Genachowski is rapidly reaching a "Wagon Train" moment. Many of the readers of this space are too young to have watched the 1950s-60s television series "Wagon Train" starring Ward Bond as wagon master Seth Adams and Robert Horton as the dashing scout Flint McCullough. For some time, Wagon Train was television's top-rated show. And I watched along with millions of Americans.

Here's the image that sticks in my mind about Wagon Train and real-world wagon trains of modern sorts. As the wagon train, with its pioneers, pushed steadily west, week after week, there were always potential perils ahead. The scout's job was to ride ahead and to detect and appraise the dangers –- and to report back to the wagon master. The wagon master had to assess the scout's information –- and to have the foresight to make the right decision about the road ahead. Whether to speed up or slow down. Or take the right or left fork, or no fork. Or to turn back or move forward.

FCC Chairman Genachowski is facing his own Wagon Train moment. Presumably, his scouts have considered potential perils and offered their assessments of various options. But like the wagon master, in this instance the decision is his. He is being pressed by Democrat Commissioner Michael Copps to classify broadband Internet services as Title II common carrier services and regulate them, as Free Press Chairman Tim Wu says, just like the railroads and telegraph carriers were regulated in 1910. Democrat Commissioner Mignon Clyburn reportedly would go along with this approach, while Republican Commissioners Robert McDowell and Meredith Baker steadfastly oppose it.

Ultimately, the wagon train's pioneers – risking all – had to depend on the wagon master's experience, expertise, and most of all, sound judgment, to make the right decision. Making the right decision involved an understanding by the wagon master of what had been encountered on the trail already traveled. But, more importantly, it involved an ability to look ahead, to see around the curve in the bend – to see into the future, if you will – concerning the trail not yet traveled. The responsibility of leadership was the wagon master's.

I have been thinking of my childhood memories of Wagon Train and my adulthood image of all variety of wagon trains as I contemplate where we are today in the net neutrality debate. There may be options other than my preferred one of the FCC working with Congress to develop a new market-oriented statutory framework. For example, perhaps the FCC could adopt the transparency rule it has proposed, and adopt a rule governing Internet practices along the lines I suggest for a statutory provision.

But I am strongly of the view that a bare FCC majority should not turn back the clock to 1910. In the technologically-dynamic and rapidly-evolving competitive marketplace environment in which they operate, broadband Internet service providers do not resemble twentieth century railroads, or telegraph carriers, or Ma Bell. Putting aside all the legal difficulties that changing the ISPs' present "information services" classification would cause, the risks to innovation and investment posed by imposing a common carrier straightjacket make such backwards-looking approach untenable as a matter of policy.

If Chairman Genachowski has a proper appreciation and understanding of the road already traveled by communications policy in the past decade or so –- simply put, from largely regulated monopolistic narrowband telephone services to lightly regulated broadband Internet services –- and a farsightedness concerning the road ahead, as the Internet continues to evolve, he will not want to turn-about and go backwards. There is no doubt that the Title II common carrier route would constitute such a turn-about.

Come to think of it, I don't remember the wagon master Seth Adams ever turning the wagon train around and heading backwards. To the contrary, the wagon train always continued on the westward journey, the way forward.

As a leader, Chairman Genachowski is facing his wagon train moment. I'd be quite surprised – and very disappointed – if he decided to turn around and head in a backwards direction on the nation's Internet journey.