[1st-mile-nm] Susan Crawford: Back to the Digital Drawing Board

[Richard Lowenberg]

There has been much news in the last couple of days about the DC 
Circuit Court decision in Verizon vs. the FCC.
Susan Crawford, I think, gives a good short assessment of the decision 
and of possible next steps.
RL
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http://nyti.ms/1eVI1AI

Back to the Digital Drawing Board

By SUSAN CRAWFORD JAN. 16, 2014

CAMBRIDGE, Mass. — IN less than 20 years, ubiquitous, reliable 
high-speed Internet access has gone from a vision to a novelty to a 
fundamental part of the American economy — not to mention our civic, 
social and personal lives.

Central to this is the principle of net neutrality: that the cables 
that bring the Internet into our homes should be there for all to use 
equally. Whether you are a content provider or a subscriber, as long as 
you pay your bill, it shouldn’t matter whether you use them to send 
email or connect to Netflix or YouTube.

That, however, may change, thanks to a circuit court ruling this week 
in the case of Verizon v. the Federal Communications Commission. The 
decision deferred to an old F.C.C. determination that telecom cables, 
the primary conduit for Internet access, are not utilities, and cannot 
be regulated as such, leaving American businesses unprotected from the 
depredations of a handful of giant Internet access providers.

Service providers can now strike a deal with YouTube to get faster 
delivery speeds to customers, and Comcast, which owns sizable content 
assets itself, can use its control of the cables to get an edge over 
rival content providers.

But rather than despair, this is a moment of opportunity. The court 
didn’t make its decision because it was opposed to net neutrality, but 
because the F.C.C. had painted itself into a regulatory corner, having 
developed a convoluted, contradictory set of rules regarding Internet 
access over the last decade.

The decision now forces the commission to go back to square one and 
reverse the industry-compromised decisions that set it on this path in 
the first place and that have long undermined its authority over this 
crucial infrastructure.

The problem began in 2002, when Michael K. Powell, the F.C.C. chairman 
who now heads the cable industry’s trade association, decided to exempt 
high-

speed Internet access from so-called common carriage regulation. Those 
rules, applied most notably to phone service, bar providers from 
discriminatory service — everyone who pays a phone bill gets the same 
quality of service.

But Mr. Powell reasoned that Internet access was an information 
service, distinct from the traditional communications infrastructure, 
and that competition would be better than oversight at protecting 
Americans from any abuses by access providers.

It’s a good thing the F.C.C. is staffed by so many lawyers, because it 
was soon faced with complaints by consumer groups and Internet content 
providers alleging that companies like Comcast, far from being checked 
by competition, were using the lack of competition in local Internet 
service, combined with the lack of oversight, to favor their own 
commercial interests.

After it was revealed in 2008 that Comcast had interfered with access 
to certain file-sharing networking applications, the commission 
performed an about-face, ordering the company to adhere to a new 
approach for managing bandwidth demand.

This put the commission in a logical bind. It claimed, somehow, that it 
both repudiated the need for “common carriage” rules and, at the same 
time, had the power to prevent discrimination by service providers.

Comcast, Verizon and other Internet service providers quickly filed 
suit. Though the commission fought a valiant fight, defending this 
contradiction was always a losing battle. The commission first lost 
following a challenge by Comcast in 2010, after which it recast its net 
neutrality stance, mandating that service providers not choose winners 
and losers among providers of online content or require them to pay fees 
as a condition of carriage.

Verizon then challenged that mandate, and the result was this week’s 
court ruling. Unlike the 2010 decision, this time the circuit court left 
little room for the commission to revise its rules yet again.

The court did, however, offer a way forward, if the commission was 
willing to take it. The agency must revisit and reverse Mr. Powell’s 
2002 decision, relabeling high-speed Internet access a common carriage 
service.

That has always been the obvious solution. But for years the commission 
has refused to do so, because its jury-rigged, contradictory stance 
worked well enough. Now it has no choice.

And it must act, soon. Otherwise, we will have an Internet in which, 
say,

Google can pay extra to give Gmail users faster access to their email 
than Hotmail users. And Microsoft, which owns Hotmail, will have no 
choice but to pay more, too, because each Internet service provider has 
a monopoly, or close to one, over local networks.

In the end, the providers’ slicing, dicing and gouging is great for 
their shareholders, but not for the country. We’ll end up with a digital 
replica of pay TV, rather than the Internet that has prompted such 
economic growth and innovation in America.

Without the right administrative label applied to these services, every 
step the commission takes to address these problems will be subject to a 
protracted battle over whether the F.C.C. is impermissibly treating the 
network providers as “common carriers.” In the meantime, we will be no 
closer to having the reliable, ubiquitous, neutral, world-class 
communications infrastructure we need than we are today.

High-speed Internet access isn’t a luxury; it is basic infrastructure, 
like electricity, clean water and a functioning street grid, that is 
essential for the free market to function. The F.C.C. can show its 
strength by having the guts to change its mind.

Susan Crawford is a visiting professor at Harvard Law School and the 
author of “Captive Audience: The Telecom Industry and Monopoly Power in 
the New Gilded Age.”

A version of this op-ed appears in print on January 17, 2014, on page 
A25 of the New York edition with the headline: Back to the Digital 
Drawing Board.

© 2014 The New York Times Company


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Richard Lowenberg, Executive Dir.
1st-Mile Institute, 505-603-5200
P.O.Box 8001, Santa Fe, NM 87504
www.1st-mile.org  rl at 1st-mile.org
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