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Why wait for Congress?


By Scott Bradner


A few days after I filed last week's column ( the FCC decided not to wait for the legislative process and just give Senator Ensign a bunch of what he wants plus some things he did not ask for.  So far what we know is from FCC press releases and from statements from some of the Commissioners since the actual orders have yet to be released.  From this it is clear that the FCC removed all sharing requirements from telephone company DSL infrastructure, extended wiretapping requirements to facilities-based Internet service providers and adopted a toothless set of degraded principals relating to Internet service.  Congress and the courts will still speak on these actions but its still interesting to get glimpses such as these into the mind set of today's FCC.


As far as I can tell the FCC did just what Ensign wanted to do in his bill in regards to removing the requirement to share DSL equipment from while retaining the requirement to resell the underlying copper circuits at reduced rates.  The FCC also published a set of principals covering consumer entitlements for Internet service that get close to some of the customer rights in the Ensign bill. 


The FCC's version ( is quite a piece of work.  I had to read it a number of times before I understood how little it said.  There are 4 ringing principals including being able to access Internet content, run whatever applications they want using whatever devices they want and being able to have competition between providers of different types.  But each one on its own then all for as a group are undercut to worthlessness by conditions placed on it.  For example, you can run any application as long as law enforcement says you can.  For some of the law enforcement people I've talked to that would mean you could not use a VPN back to the office to read your confidential corporate email.  In addition, all 4 principals are subservient to "reasonable network management" meaning that an ISP could say I can't manage my network if you run that application or access that content.


Both the FCC and the carriers say that they do not currently block customer access to applications and that customers would never stand for it if they did.  I won't say that they are lying but a lot of ISPs block email (other than from their own email servers) today and just what choice would the customer have?  Under this plan there are just two providers and they both have the incentive to block customers' access to services they donŐt have a stake in.


The FCC does not quite know what to do about the Universal Service Fund so in these orders has told everyone to just keep doing what they have been for a few months while the FCC does yet another study.  The FCC also did basically what it said it would do a year ago and extended general wiretapping requirements to facilities-based ISPs and VoIP providers that interconnect with the PSTN. (


So now we know that the FCC's priorities are (in priority order) 1/ protect incumbent carriers, 2/ give law enforcement more than it needs and a distant 3/ pretend to be concerned about the customer. 


disclaimer: Harvard has more resources than most students need but that is a good thing - the above observation of a bad thing is mine not the university's.