FreePress’ latest unfounded accusations that the Level-3 peering dispute with Comcast is somehow a net neutrality violation exposes how embarrassingly ignorant the extreme left is about how the current Internet came to be and actually works. 

  • In 1995, during the Clinton Administration, with broad bipartisan support, the National Science Foundation privatized the Internet backbone by encouraging the decommissioning of the NSFNET and transferring Internet transport to three private sector backbones.
    • There are now as many as 4,000 networks in the U.S. that voluntarily and collaboratively peer together to comprise what we know as the Internet in the U.S.
    • These peering arrangements have always been tiered based on the amount of traffic the network carries, routes and exchanges, and the relative amount of traffic that is exchanged, i.e. is it roughly symmetrical traffic coming in and going out, or is is asymmetrical, meaning the side that is doing less work compensates the one doing more work for the trouble of carrying the excess traffic?
  • In 1996, Congress almost unanimously passed the 1996 Telecom Act and established U.S. Internet policy: “…to preserve the vibrant and competitive free market that presently exists for the Internet… unfettered by Federal or State regulation.”
  • In 1997, President Clinton said in “The Framework for Global Electronic Commerce:” “For electronic commerce to flourish, the private sector must continue to lead. Innovation, expanded services, broader participation, and lower prices will arise in a market-driven arena, not in an environment that operates as a regulated industry.  

The point here is the Internet backbone has been privatized, unregulated and competitive since its private inception in 1995.

  • It has always been voluntary, the FCC has always stayed out of it, and it has always worked beautifully — on its own.

For FreePress and others to now try and conflate the fact that Comcast continues to insist that its Internet traffic peering arrangements continue to be done like they always have been done, voluntarily, collaboratively, and competitively — is somehow anti-competitive, non-neutral, or not open — is preposterous.

The Internet backbone is not this magical place where any and all traffic is sent, and which never requires any cost of effort to route or deliver — is pure fantasy.

  • The reality is that an enormous amount of cost, work and effort goes into making the ~4,000 networks that comprise the Internet work every day, and work in an incredibly resilient and reliable way.

Fortunately those at the FCC experienced with Internet peering arrangements fully understand Internet peering is not broken or in need of FCC fixing.

 

It appears the FCC has lost sight of the essential fact that legitimate policy must come from a legitimate process.

Currently, the FCC is reportedly preparing to mandate net neutrality regulations December 21st, ostensibly to ensure an open and transparent Internet.

  • Unfortunately, the FCC has not been open or transparent at all in its process of late, giving the public or markets no public justification, rationale, or explanation why what they are planning to force is legitimate.
  • How does not following or respecting the spirit or principle of “openness” in FCC “open” Internet policy making — engender legitimacy?

How does the FCC seriously threatening to impose the “nuclear option” of Title II telephone regulation of the Internet behind closed doors, in order to coerce assent for, and compliance to, unnecessary, unjustified, and unwarranted permanent net neutrality regulations under Title I — engender legitimacy?

How does the FCC deciding its most controversial rule making exactly in between the seam of the current Congress, where ~300 members asked the FCC to defer to Congress, and the future Congress, which has made it clear they want the FCC to defer to Congress — engender legitimacy?

How does deciding the most controversial rule making in recent FCC history at the functional equivalent of the dark of night, December 21st, when everyone will either be preparing for the holidays/vacation and the fewest amount of people will be paying attention — engender legitimacy?

How will the FCC forcing this net neutrality vote into a highly contentious 3-2 partisan vote, when every previous FCC net neutrality decision was based on the legitimacy of 5-0 unanimous bipartisan votes — engender legitimacy?

How will regulating the Internet for the first time, based on no evidence of a problem that needs to be solved — engender legitimacy?

How will preemptively regulating the Internet in a way that slows innovation to the pace of the FCC’s bureaucracy, and discourages new investment, economic growth, and job creation, when the economy is fragile and when the FCC Chairman recently declared to NARUCAt the FCC, our primary focus is simple: the economy and jobs” — engender legitimacy?

In sum, for industry, the economy, job creation, and the Nation to succeed, the FCC needs to follow a legitimate process to create legitimate policy that will stand the test of time, court challenge, the bipartisan Congress, investment, and the economy.

  • The FCC has too many legitimate problems to solve (universal service, freeing up spectrum, public safety spectrum, etc.) in the months and years ahead for the FCC to endanger its ongoing policy making legitimacy in the Internet era by unnecessarily, and unjustifiably over reaching on net neutrality in a manner and process that devastates the FCC’s Internet policy making legitimacy going forward.

 

Only FreePress would hold a press conference to release essentially a longer-version of its previously-debunked legal analysis calling for the FCC to regulate competitive broadband providers as Title II telephone public utilities.

The essence of the call, which made no news, was FreePress reiterated that the FCC should ignore:

  • The Appeals Court’s decision that the FCC does not have direct authority to regulate the Internet;
  • Congress’ constitutional authority and intent to address this issue; and
  • Basically everything that has happened in the last 100 years — (because FreePress Chairman Wu says the answer to the FCC’s policy conundrum can be found in the policy established in 1910 — before the FCC, TV, computers or the Internet existed.)

For anyone that wants to examine in depth why FreePress’ legal and policy analysis remains fatally-flawed and would cause an unmitigated disaster click: HERE

 

The FCC’s latest apparent attempt to justify mandating Internet regulation is:

  • Net neutrality is about preventing anyone from regulating the Internet.
  • There are some phone and cable companies out there that want to decide which apps you should get on your phone, which Internet sites you should look at, and what online videos you can download.” “That’s regulating the Internet — and that’s what the FCC is trying to stop.” — per a senior commission official in the 11-22 Communications Daily and Politico.com’s Morning Tech.

To begin, if the FCC actually wanted to prevent “anyone from regulating the Internet,” would that not logically include preventing the FCC itself from regulating the Internet?

It is supremely ironic that the entity that describes itself as the lead U.S. “regulator” per law, is accusing companies of being the real “regulators” when the law, FCC “regulation,” common knowledge and common sense all consider companies to be “competitors” and not “regulators.”

Competitive broadband companies compete by offering differentiated products, services, features, prices, bandwidth, quality of service, security protections, etc., because consumers’ needs, wants and means are very different.

  • That’s competing.
  • That’s the essence of competition that is the basis of U.S. communications law, regulation and market practice.
  • That is not regulating by any reasonable interpretation of the term in this context.

If competitive broadband providers do not satisfy their customers, they lose them, because U.S. consumers have more facilities-based broadband competitive choices than any other citizenry in the world — by far.

  • That’s the wisdom and beauty of the American free market system; if consumers don’t like what they are getting or how they are being treated, they have the freedom and choice to take their business elsewhere.
  • Unlike the Federal Government, competitive broadband providers, have no governmental coercive power to “regulate,” mandate, or force compliance — they can only enter into voluntary contracts with consumers for competitive products and services.
  • It is the FCC, which has the full coercive weight of the Federal Government to enforce regulation of communications — within the boundaries of the U.S. Constitution, law, precedent, official procedures, due process, and the electoral process.

This latest strange justification episode is eerily reminiscent of another time the FCC tried to redefine reality contrary to U.S law, FCC regulatory precedents, and the Supreme Court.

  • In that strange episode with the Wall Street Journal, the FCC Chairman appeared to try and redefine the Internet as excluding the broadband networks that actually comprise and make up the Internet, but as including only what rides on the Internet networks, despite the fact that that view is in direct contradiction with the law, the FCC and the Supreme Court.

In sum, how serious does the FCC expect to be taken when they officially and publicly try and justify their actions by denying the law, regulation, legal precedent, common knowledge and common sense by nonsensically arguing that:

  • FCC regulation of the networks that the law, FCC regulation and the Supreme Court all define as the Internet is somehow not regulating the Internet;
  • Broadband Internet competitors are the real regulators, not the FCC; and
  • The FCC regulations would only prevent regulation?

If this is the best justification the FCC can muster, it suggests that potential FCC net neutrality regulation of the Internet could be an unmitigated disaster, because there is slim chance that the courts, the Congress, and the public will accept and support such fatally-flawed, circular logic and justification that defies any common sense or reasonableness.

 

If the FCC is proposing open Internet/net neutrality regulations soon for decision in December, it is ironic that the FCC, which is poised to mandate openness and transparency for competitive broadband providers, is not leading by example in being open or transparent themselves.

If the FCC Chairman intended to decide net neutrality regulations imminently, why did the Chairman not openly mention his plan, rationale, and justification to his fellow regulators in his annual major policy vision speech to NARUC this past Monday?

  • If the FCC is now confident its new Internet regulations are indeed the right and defensible thing to do, why not openly and transparently defend them, why schedule them right before a big holiday recess, when the FCC knows most everyone interested will be traveling or on vacation and not be able to read them or respond to them?
    • Would the FCC consider it open or transparent, if competitive broadband providers fulfilled their openness and transparency obligations, at a time, and in a manner, when its obvious most all consumers would not hear them or benefit from them?

If there is a possibility that new net neutrality regulation could be on the December agenda, why isn’t the FCC’s spokesperson not open and transparent that it is a possibility rather than denying it as “uninformed” and “pure speculation at best.”

If the FCC believes in open government and that transparency is the best policy, why would the FCC schedule a decision on such an important issue when Congress is on recess and its overseers are most likely to be out of town?

If the FCC now has discovered new evidence of a problem of market failure that requires new quick FCC regulation to solve, why is the FCC not openly and transparently sharing it with the public so that they are assured the FCC is on top of it?

If the FCC has invented a new defensible rationale and justification for why two thousand competitive broadband companies, which have not yet been accused of any wrongdoing, are guilty until proven innocent and should be regulated preemptively… why is the FCC not open and transparent about that?

If the FCC now has figured out a new defensible Title I legal rationale after the appeals court rejected their last one, and after arguing later that Title II is the best legal approach in its “Third Way” release, why not openly and transparently share the FCC’s new legal logic and analysis publicly before it becomes a de facto fait accompli when announced in proposed rules?

  • (That way the FCC could be spared losing again in court and the economy could be spared from the whipsaw uncertainty of new potentially flawed legal analysis — yet again.)

If the FCC believes openness and transparency is the best way to create certainty and thus economic growth and job creation, why is the FCC being stealthy and closed and not open and transparent in presenting the FCC’s work product?

And where is FreePress on the FCC’s lack of openness and transparency, the entity which routinely screams when it believes the process is not fully open or transparent?

In sum, the real interesting story here may be the proverbial “dog that did not bark.”

  • As those who have followed this painfully real regulatory soap opera know only too well, when the FCC is not going in FreePress’ direction, or is not moving fast enough for FreePress, FreePress excoriates the FCC and its Chairman via FreePress’ favored media outlets.
  • The fact that FreePress has a Cheshire Cat smile and is not even mewing at the FCC, strongly suggests that they have been told in a not very open or transparent way, that they are being taken care of.

If the FCC expects to promote true openness and transparency in the industry, the least they could do is lead by example with true openness and transparency at the FCC.