Digital Mercury

CDT’s Leslie Harris has a good summary of a key dispute in the reclassification debate — whether broadband can be coherently divided into distinct components.

And the stakes are high.  If the answer is yes, then the FCC will have authority to adopt open network protections and to enact various aspects of the National Broadband Plan.  If the answer is no, it won’t.

Reclassification supporters say yes — broadband can be divided cleanly into a transmission component and a content component.  In legal terms, it therefore includes a “telecommunications service” component (which can be regulated) and an “information service” (which cannot).  Opponents, however, say no — broadband is a functionally integrated whole, and these divisions defy technological realities.  Accordingly, the whole thing is an “information service,” and cannot be regulated.

As Harris explains, a key question in this debate is “what exactly are ISPs offering when they offer broadband access?”  Are they primarily offering transmission to the wider Internet?  If so, that sounds like a telecommunications service.  Or, by contrast, are they offering a service that integrates various content and applications?  If so, that sounds more like an information service.

Interestingly, the ISPs’ own commercials may answer the question.  Below is a YouTube clip of Comcast’s family of turtles — the Slowskys.  As you can see, the entire point of the commercial is to emphasize the speed of Comcast’s network:

This commercial isn’t unique.  The comments filed are full of ISP ads that emphasize transmission qualities such as speed.  And this makes sense.  The market has changed since the late 1990s during the Pax AOL-ana.  When people bought AOL, they were buying not merely transmission service, but access to email, portals, etc.

Today, by contrast, we don’t think of the AT&T and Comcasts of the world as content providers.  They give us transmission to the third-party content we use (Google, Yahoo, Facebook, iTunes, etc.).  Their commercials seem to recognize this fact by distinguishing their services not on the basis of content, but of speed.

There’s a lot more to the debate of course.  But the ISP’s own commercials may not do them many favors in this context.

Commissioner McDowell’s WSJ op-ed is disappointing — and more inflammatory than informative.  He compares, for instance, the FCC’s attempts to maintain decades-old protections of Internet freedom to dictatorial repression in places like Iran and North Korea.  He can do better than this.

The op-ed’s main argument is that the FCC shouldn’t maintain these traditional Internet protections (i.e., Title II reclassification) because they could trigger international regulation of the Internet, and could encourage other states to regulate the Internet.  But there are, however, several problems — and even inaccuracies — in his arguments.

First, McDowell is simply inaccurate in suggesting that reclassification could trigger a “cascade of international regulation of the Web” by the ITU (the International Telecommunication Union, an UN agency).  The ITU has no enforcement mechanism, relying instead on negotiations.  Plus, there’s currently no treaty on Internet regulation anyway — and the United States could always opt out of parts of it, assuming it even existed.  Which it doesn’t.  So I’d be very curious to hear some follow-up questions from the press on how exactly this cascade of regulation could flow from an agency without an enforcement mechanism.

Second, McDowell mischaracterizes the reclassification debate in several respects.  The point of reclassification is to protect Internet freedom.  It’s about restoring the traditional protections that have existed for decades, and that the FCC sought to eliminate in 2002.  These regulations are not anti-market — they’re market-creating and market-protecting.  An open nondiscriminatory platform (much like government-enforced property rights) creates a foundation for free competitive deregulated markets “on top.”  Reclassification does not apply to content or applications markets.  It’s entirely about preventing the carriers themselves — as physical network owners — from limiting traditional Internet freedoms. That’s why reclassification is consistent with the State Department’s commendable efforts to promote Internet freedom.

And McDowell knows all this.  But he obscures the point by implying that regulations designed to maintain a free and open physical network are “regulating the Web.”  Even worse, he suggests that these protections of Internet freedom are similar to Internet repression in states like China.

McDowell’s history is also misleading.  He writes that the Internet has been “open” since it was “privatized in 1994.”  In reality, however, the Internet at that time (which was primarily dial-up) was “open” because government required it to be open.  The traditional nondiscriminatory protections continued to apply even after 1994 (at least to dial-up).  It was in this regulatory environment (and because of this regulatory environment) that the Internet’s growth exploded as literally thousands of providers emerged.

In short, reclassification is about ensuring Internet freedom — not reversing it.  Failure to follow through would allow carriers to impose many of the very restrictions on Internet freedom that McDowell is worried about.