Professor Crawford’s Desperate Search for a Problem to Regulate
Professor Susan Crawford’s Bloomberg op-ed, “New FCC Head Must Reclaim Authority over Telecom,” exposes a profound lack of substance, in being unable to identify any real market problem warranting FCC regulation.
Let’s review Professor Crawford’s litany of contrived policy problems.
First, she charges that ISPs are working “to ensure no regulator has any real authority over them.” No, ISPs are pointing out the unique excessiveness of having THREE government entities having authority over them on the same general matters. ISPs are not asking for any reduction in authority for the DOJ or the FTC. Specifically, Verizon is asking the D.C. Appeals Court to decide if the FCC exceeded its legal authority in imposing prophylactic common-carrier-like regulation on companies that have not done anything wrong.
Second, she charges that in 2002, the FCC “gave up any authority to require that network access providers not discriminate…” No, the FCC decided that broadband was a competitive information service that should not be regulated like a monopoly telephone company. The FCC was simply extending the decades-old FCC policy in its Computer Inquiry I,II, & III decisions, which rightfully sought to not impose common carrier regulation on computer services to promote innovation. The FCC determined that broadband was a computer/Internet service not just telephone call network.
Third, she demands that the new FCC Chairman mandate the nuclear option of Title II reclassification of broadband: “It’s imperative that Wheeler reclaim the FCC’s authority over telecommunications.” No again. Currently there is no problem with the FCC not having common carrier authority over broadband. However, if the FCC were to follow Professor Crawford’s recommendation, and pull the rug out from under an industry that has invested in good faith, almost a trillion dollars in modern and competitive broadband facilities, under the legal, policy and political precedent, assurances and consensus that broadband would not be common carrier regulated – that unwarranted, unjust, and capricious action would cause monstrous problems.
Finally, she imagines that: “The U.S. lacks any plan to upgrade from cable to faster fiber-optic connections, and there is no competition among providers to drive technology upgrades… [or] to treat fairly any interconnecting networks...” Obviously Professor Crawford has not done her research and does not know that Comcast demonstrated a 3 Gigabit cable broadband network at the Cable Show and Cable Labs has plans for more than 10 Gigabit cable broadband capability. She also does not understand that the existing, well-functioning, Internet peering system has never suffered from common carrier regulation. She somehow imagines that the very few companies like Netflix, that transport orders of magnitude more traffic than most anyone else, are somehow being discriminating against, if they negotiate an agreement to pay for some of the costs its massive traffic causes for others.
In sum, Professor Crawford gamely tried to identify a real problem to justify common carrier regulation of the broadband Internet, but could not. That speaks volumes. If this is the best that the Save the Internet’s movement’s torch-bearer can come up with after several years of trying, there is no there there -- but smoke and mirrors.