They say April showers bring May flowers. What will the waters of March bring us? I refer not the immortal jazz standard, "The Waters of March" by Antonio Carlos Jobim, but to the increasingly torrential shower of droplets now leaking—or rather, gushing—from the Federal Communications Commission's National Broadband Plan team. Not a day goes by without serial announcements of what is, and is not, in THE PLAN (only full capitalization can do this plan justice, as Professor James Speta once remarked). Examples of this serial leakage, include the tribal radio preference plan, Universal Service Fund reform to support broadband, and the mobile futures auction idea. FCC "Kremlinologists," investment analysts, and the press are busy studying these droplets for clues, as Forbes.com put it, of "Broadband Plan Winners and Losers." Of course the people of the United States will be the ultimate winners if THE PLAN is done correctly, but at the same time, the decisions made by the government will create industry sector winners and losers, as the headline states. Setting aside whether it is a good use of government resources to pick industry winners and losers, development of a plan to spur broadband deployment and adoption is exactly what Congress directed the FCC to do in the American Recovery and Reinvestment Act.
Computerworld's Matt Hamblen had one of the more revealing reports this past week based on a "wide-ranging telephone interview" with Blair Levin, executive director of the FCC's Omnibus Broadband Initiative, entitled "FCC broadband czar defends national plan." Levin characterized the FCC's mandate under the Recovery Act as "may be the broadest mandate any agency has ever gotten from Congress." Consequently THE PLAN is, according to Levin, "inherently broad, including three U.S. priorities for broadband deployment: bolstering the economic infrastructure of the country; spurring broadband innovation and investment; and bringing access to broadband technology to everyone in the U.S., including the 92 million people in the country now without access to high performance Internet connections."
Levin discussed many of the now-familiar aspects of THE PLAN, including recommendations that TV broadcasters be permitted to voluntarily offer unused spectrum for wireless Internet uses, relying on "cognitive radio" to help users find available unused spectrum, and repurposing the telecommunications universal service fund to support broadband Internet connectivity. Yet, I found myself more interested in Levin's description of what is not in THE PLAN, and particularly in his choice of the word "Initiative."
Levin said that net neutrality provisions will not be a part of the Broadband Plan because of a separate FCC Open Internet Initiative. In turn, any legislative recommendations on net neutrality from the Open Internet Initiative will probably be considered by Congress in the Internet Freedom Preservation legislation and related bills.
Note Levin's use of the new buzz word "Initiative" after the phrase "FCC Open Internet." The last time I checked, the FCC's Open Internet proceeding, GN Docket No. 09-191; WC Docket No. 07-92, "In the Matter of Preserving the Open Internet, Broadband Industry Practices," was a formal rule making proceeding under the Administrative Procedure Act, and not an "initiative." An administrative agency "initiative" could produce many things, but not enforceable rules published in the Code of Federal Regulations. Levin' next sentence, indicating that the Open Internet Initiative may produce legislative recommendations to be considered in conjunction with Rep. Markey's Internet Freedom Preservation Act seems to indicate that the end product of the Open Internet rulemaking will not in fact be rules, but rather legislative recommendations.
And this is how it should be in our system of government. Administrative agencies have no law-making powers, separate and apart from those delegated by Congress. If an expert agency like the FCC determines a need for additional regulatory powers to address changing industry structures, technologies, or consumer needs, it should make legislative recommendations to Congress and let our elected representatives decide the matter. It is for Congress and not the FCC itself to say whether the agency should be permitted to regulate the Internet and the provision of interactive computer services, how they should be regulated, and how much of the Internet ecosystem (much of which is already within the FCC's subject matter jurisdiction over wire and radio communications) should be brought within the agency's regulatory jurisdiction.
I have noted the lack of need for net neutrality mandates and the lack of jurisdiction to impose such rules, and suggested in my comments that the FCC might do better to use this rulemaking proceeding to clarify and expand its four Internet policy principles than to issue rules. Using the net neutrality docket to compile legislative recommendations, as Levin suggests, would also be a very productive use of the enormous record the agency is gathering on the net neutrality controversy, whether standing alone or in conjunction with the production of a refined set of Internet policy principles.
In fact, this is probably all the FCC can do under its current statutory authorization, which, as I stated in my net neutrality comments and elsewhere, does not give the FCC the legal authority to regulate the provision of interactive computer services or the Internet.
So, what is in a word? Is it significant that Levin is now calling the rulemaking an initiative? Maybe this word change it is that glimmer of light, that "green shoot," we have been waiting for, indicating that the agency does not plan a regulatory intrusion into the relatively well functioning Internet ecosystem at this time. Well, we can hope.
Photo source: photogirl17
