Thursday, August 26, 2010

"Establishing a Clearly Limited Power"

The Washington Post has an excellent editorial in today's paper on net neutrality. The Post's editorials have been consistently good on the net neutrality issue since the paper first echoed my sentiment last September in an editorial entitled, "The FCC's Heavy Hand." There the paper concluded that FCC Chairman Julius Genachowski's ideas for new net neutrality regulation constituted "an immodest proposal." Since then, with his latest proposal now on the table to classify broadband Internet providers as common carriers, Mr. Genachowski's regulatory proposals have become even more immodest.

While I certainly do not agree with all aspects of the Google-Verizon proposal, the Post is correct in urging that the agreement provides a good starting point for pursuing legislation that provides the FCC with delimited authority over Internet providers.

Please read the entire editorial. But here are two key excerpts:

"And the proposal includes many good elements -- especially its designation of the FCC as an adjudicatory body such as the Federal Trade Commission rather than one with intrusive regulatory authority. In a realm as complex and evolving as the Internet, where the challenges vary from year to year and it is impossible to predict the direction of innovation, this is essential. Allowing the FCC to enforce on a case-by-case basis can leverage expertise and create a body of useful precedent, rather than stifling innovation with unwieldy preemptive regulations."

"The FCC stands poised to reclassify broadband service providers as content carriers, a category that would subject them to the same sort of regulation that telephone companies are saddled with, even giving the FCC the ability to set rates. The agency's chairman says that the FCC won't use this power -- but this could change in another administration. Such a move would be a serious step backward. A better route would be legislative enactment of something like the Google-Verizon plan, with an emphasis on transparency about decisions that providers are making. Giving the FCC the authority to nudge things in the right direction will be a good first step. As the Internet evolves, the nature of needed oversight will evolve as well. Establishing a clearly limited power to take action against anti-competitive violations, rather than encumbering this vital sector with detailed and prescriptive regulation, is the sensible approach."

This emphasis on adoption of an adjudicatory case-by-case approach, rather than one permitting the FCC to exercise intrusive regulatory authority, is very important. And the notion that Congress should delineate the FCC's "clearly limited power" to focus on anti-competitive actions, rather than allowing the agency free rein to adopt detailed prescriptive regulations, is key to maintaining an environment that does not discourage the innovation and investment that is much needed for continued Internet progress.

Shortly after last Spring's D.C. Circuit's Comcast decision, I offered in this piece some legislative language for consideration. It contains many of the same elements endorsed by the Post. I still commend it to you as an approach worthy of Congress's consideration as a way forward.

Obviously, there will be differences of opinion as to legislative language. Ultimately, unlike in the process of writing think tank pieces, there will be compromises made in the process of writing legislation that reflect the realities of the political process. But there should be widespread agreement now, in line with the Post editorial, that Congress should be given time to work its will.

As I pointed out here a few days ago, one of the most vociferous advocates of hard-line Internet regulation is urging Mr. Genachowski to act now in order "to fire up the base in time for election." This is decidedly not a reason for acting. Rhetoric of this kind only serves to compromise and denigrate the idea that the FCC is an independent regulatory agency, and that its actions are based primarily on its collective institutional expertise and experience, not on campaign promises or partisan considerations. Such partisan rhetoric ill-serves the agency, and the public interest.

It's time for Chairman Genachowski to pull his Internet regulation proposal off the FCC's table.