Mutually Assured Destruction?

Many pundits seem to think that the U.S. Appeals Court in D.C.’s recent rejection of former FCC chmn Kevin Martin’s attempt to body slam Comcast for its bandwidth management practices puts current FCC chmn Julius Genachowski in a pickle. Will he or won’t he reclassify Internet access from an information to a telecom service? FCC staffers are already plowing through voluminous comments in the current “open Internet” proceeding, whose reply round ends on April 26. This comment period is very important because it lets affected companies and public interest groups hire lawyers to transform 45,274 press releases into thick legal documents with bigger words and footnotes. And now we’re in the final “reply comment” round in which those same lawyers rehash their earlier arguments and footnotes, while also addressing other lawyers’ arguments and footnotes. After April 26, the FCC will take all the comments (including gigabytes of form-letter emails from ordinary citizens exercising their First Amendment right to cut and paste) and put them into a big room where staff lawyers will read them—right before each commissioner goes ahead and votes the way he or she would have voted all along anyway. It’s democracy in action, folks!

 

The Obama Administration’s end-goal is clear: Reign in powerful ISPs like Comcast, AT&T and Verizon before they destroy the little guy—the little guy being Google, of course. That’s perhaps an oversimplification, but the point is that this fight isn’t really about consumers anymore. It’s about business advantage. And powerful forces that don’t own any wires or towers want to make sure they aren’t suddenly bowing before Brian Roberts. Who could blame them? Martin used earlier policy statements to justify a decree against Comcast and, by extension, other cable ops. That didn’t work. So now, Genachowski must go a different route. But that’s his conundrum. Try to reclassify Internet access as a telecom service, and the entire industry becomes a foe. If Kevin Martin relished cable’s constant wrath, Genachowski will love facing off against… everyone.

 

Real-world implementation is also an issue. Is it wise to subject a kazillion data packets to the Byzantine rules governing landline phone service? Is Skype now covered under universal service? Are Tweets and Facebook posts? These sound like ridiculous questions, but subject the Internet to traditional phone regs and see what kind of legal hijinks ensue as lawyers argue that this or that service should be subsidized or in some way regulated. Sure, cooler heads could prevail over time, but at what cost? Years of messy litigation and endless proceedings at the FCC? Is it worth it? What a mess.

 

So here’s an idea. Call it crazy, but what if the FCC just left things alone—but with a caveat? What if Genachowski, with a wink from Obama, just told the big telecom players not to favor packets and to equally apply any bandwidth management schemes to all (including its own services). Net neutrality would loom over the industry like a threatening but dormant hydra. That way, cable and telcos would agree not to put their TV Everywhere-esque “TV on the Web” platforms on faster or prioritized pipes. And in return, Internet access would stay an information service with no market disruption. It would be voluntary, yes… and that always carries risks. But let’s face it: It’s mutually assured destruction—a friendly threat to ensure that the terrible, horrible, greedy, awful, despicable behavior that consumer groups tell us will occur… never does. Such a MAD policy wouldn’t appease those who insist on stiff net neutrality rules, but it would at least avoid unintended consequences while keeping everyone honest for the foreseeable future. Or at least until Google finishes building that fancy 1-Gbps broadband network it keeps talking about.