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FCC's "third way": trying to be partially pregnant?

By: Scott Bradner

In the aftermath of the all too predictable Comcast decision (http://www.networkworld.com/columnists/2010/041410-bradner.html ) a majority of the FCC Commissioners announced that they have discovered a new path to the land of network neutrality. (http://www.networkworld.com/news/2010/050610-fcc-broadband-statement.html ) Also predictably, most of the usual network neutrality opponents have gone into a full-bore tizzy -- and, as is normally the case with full-bore tizzy, accuracy has been a casualty.

If one were to read the statements by the telephone carriers (http://www.betanews.com/article/ATT-Verizon-stand-against-FCCs-Third-Way-Sprint-on-the-fence/1273527919) and some in congress (http://stearns.house.gov/News/DocumentSingle.aspx?DocumentID=185011 - but beware - this is a talking web page) the FCC is actively trying to kill the Internet through over regulation. It is hard to see the FCC's actual proposal (http://www.broadband.gov/third-way-legal-framework-for-addressing-the-comcast-dilemma.html) in the picture they paint.

The FCC is not actually proposing to regulate all that much, "just" the underlying transport of Internet traffic. At least that is what they say in the 30,000 foot descriptions of their plans that they have released so far. The picture might be a bit more complex when the FCC releases some actual details.

Since all of the big telephone/ISP carriers say they will not be unfair to their customers, and all the FCC says they want to ensure is that carriers will not be unfair to their customers, one might have expected that the carriers should be willing to go along in order to establish a defined set of rules to govern the playpen. But, from what I can tell, the carriers do not trust the FCC (not trust government regulators -- the very idea astonishes me). Or maybe, trust a future FCC. They fear that the FCC could suddenly decide to expand regulation beyond transport to tariffs or peering or whatever. In other words they see the FCC as claiming to only be partially pregnant with new regulatory directions.

Of course, in doing so, they are doing exactly what they accuse the pro network neutrality people of doing. The carriers say that there is no problem to be solved because the carriers are always fair and that the pro network neutrality folks are just worry warts. It is not unreasonable to say that both sets of worries may have some justification.

The carriers have not always been fair, one specific example -- Comcast trashing BitTorrent-- got us into the particular situation. A number of other, abet smaller, examples of the problem have come up over the last few years. On the other hand, it is a bit hard to imagine a government regulator holding off forever if it thinks it has the authority to regulate - it would be counter to the nature of regulators.

To date the FCC has held off most regulations of the Internet but, even in his letter (http://www.broadband.gov/the-third-way-narrowly-tailored-broadband-framework-chairman-julius-genachowski.html) describing the low-impact "third way" for Internet regulation FCC Chairman Genachowski listed six policy initiatives, most of which would involve some level of regulation of parts of the Internet community if they are to be successful. So maybe, the carriers are right to be somewhat mistrustful.

It is far from unusual for people trying to affect the policy making process in Washington to vastly over state and over simplify the dangers of a particular policy path, or of not following a policy path. It makes rational discourse a challenge - but we are talking about discourse in Washington -- where calm and rationality are always as endangered as incumbents seem to be this year.

disclaimer: Harvard is well represented in the ranks of the endangered incumbents as well as in the ranks of their challengers -- they may have left Harvard rational but I make no claims as to their current states or to any university view of the FCC plans or claims.