As I touched on last night, I can't say as I was surprised by today's announcement by the FCC to move toward full-blown Internet regulation. Voting along party lines, the three Democratic FCC Commissioners expressed their wholehearted belief that their regulation of the Internet - not de facto marketplace regulation - was the only way to protect consumers and Americans.

The Comcast v. FCC decision should have rebooted the Commission's discredited Net Neutrality ambitions. Yet instead, the FCC appears moving closer toward questionable new rules, using specious authority to get there. Such an exercise in regulatory hubris is truly confounding, especially in light of the facts and a clear consensus that the Internet must remain free from stultifying regulation.

Make no bones about it, the FCC's NOI today will work to regulate the Internet, and poorly at that. It takes a yellowed, dog-eared page from a 19^th Century industrial policy playbook, and seeks to graft that on to the rapidly evolving Internet. Ultimately, it will prove offensive to American consumers, as well as those innovating at the core and edge of America's broadband networks.

Tomorrow at the FCC's open meeting, it is expected that the Commission will release an NOI that will seek to implement Chairman Genachowski's controversial "Third Way." Ostensibly, his plan will try to chart a reasonable balance to promote an open Internet, while at the same time keeping it free from regulation. To arrive there, the Commission will likely propose to shear away the underlying transmission component of broadband telecommunications services from ISP / information services, and impose only a "handful" (like a dash of salt, I guess) of common carrier regulations on the former to keep the Internet open for applications, services, content and devices (as if it is not now already).

We do not know what's in the NOI, nor the process toward a rule or ruling. That said, it probably doesn't matter. Call me skeptical, but you don't need to be a mind reader or have a well connected lobbyist to understand that the fix is in. Not letting the facts get in the way of the situation, the Internet, through this NOI, is going to be regulated.

PFF has just published the transcript for an event we hosted last month asking "What Should the Next Communications Act Look Like?" The event featured (in order of appearance) Link Hoewing of Verizon, Walter McCormick of US Telecom, Peter Pitsch of Intel, Barbara Esbin, Ray Gifford of Wilkinson, Barker, Knauer, and Michael Calabrese of the New America Foundation. It was a terrific discussion and it couldn't have been more timely in light of recent regulatory developments at the FCC. The folks at NextGenWeb were kind enough to make a video of the event and post it online along with a writeup, so I've included that video along with the event transcript down below the fold.

Just the other day, leaders from the House and Senate said they planned on updating the Communications Act. Maybe they've finally started listening to us - we proposed doing this back in 2005, with PFF's Digital Age Communications Act (DACA). Or, perhaps the FCC's so-called "Third Way" doesn't look like the "no-brainer" that the agency spun in its press releases. Well, whatever their intentions may be, it certainly couldn't arrive at a better time.

The framing is all important, of course. Art Brodsky of Public Knowledge (ostensibly one of the groups "writing" the next Act) says Americans shouldn't worry about the FCC's "Third Way." In his view - "The government is not taking over the Internet. What the government is doing is engaging in traditional consumer protection, traditional regulation of a telecommunications service that will get people to the Internet." PK seems happy with this model - whether done at the FCC, or at Congress' hands.

Hmmm...Getting people to the Internet? Traditional, simple stuff. Sort of like strolling to the store, or peddling to the park. Or, like in childhood, making a call from tin cans and string - which is what'll result if PK and their ilk have their way.

I was very pleased to hear this announcement today from leading Senate and House Democrats regarding a much-needed update of our nation's communications laws:

Today, Senator John D. (Jay) Rockefeller IV, Chairman of the U.S. Senate Commerce, Science, and Transportation Committee, Rep. Henry A. Waxman, the Chairman of the House Committee on Energy and Commerce, Senator John F. Kerry, the Chairman of the Senate Subcommittee on Communications, Technology, and the Internet, and Rep. Rick Boucher, the Chairman of the House Subcommittee on Communications, Technology, and the Internet announced they will start a process to develop proposals to update the Communications Act. As the first step, they will invite stakeholders to participate in a series of bipartisan, issue-focused meetings beginning in June. A list of topics for discussion and details about this process will be forthcoming.

I very much look forward to engaging with House and Senate staff on these issues since this is something I've spent a great deal of time thinking about over the past 15 years. Most recently, Mike Wendy and I released a paper entitled, "The Constructive Alternative to Net Neutrality Regulation and Title II Reclassification Wars," in which we outline some of the possible reform options out there. We built upon PFF's "Digital Age Communications Act Project," (DACA) which was introduced in February of 2005 with the ultimate aim of crafting policy that is adaptive to the frequently changing communications landscape. You can find all the white papers from the 5 major working groups here. I also encourage those interested in this issue to take a look at the video from this event we hosted earlier this month asking, "What Should the Next Communications Act Look Like?" Lots of good ideas came up there.

Anyway, down below I have included the video from that event as well as a better description of the DACA model for those interested in details about how that model of Communications Act reform would work. I think DACA holds great promise going forward since it represents a moderate, non-partisan approach to reforming communications policy for the better. I pulled this summary from the paper that Mike Wendy and I recently penned:

Mike Wendy and I have just released a new PFF white paper, "The Constructive Alternative to Net Neutrality Regulation and Title II Reclassification Wars." In it, we discuss the Federal Communications Commission's (FCC) misguided effort to pigeonhole the Internet and broadband networks into the regulatory regime of a bygone era. Specifically, the agency's recent efforts to impose "Net neutrality" regulations on broadband networks, or reclassify them as Title II services under the Communications Act, raises the likelihood of delayed or foregone investment, will discourage innovation at both the core and edge of networks, and increases the likely politicization and bureaucratization of high-technology policy more generally.

We believe there are constructive alternatives to such a destructive regulatory path. The better alternative would be based on (1) a new legislative framework centered on an FTC-like enforcement model of ex post adjudication grounded in antitrust law; (2) increased industry self-regulation, technical collaboration, and alternative dispute resolution mechanisms; and (3) greater reliance on community policing and expert third-party oversight.

For more details, you can read our entire paper down below the fold:

I was interviewed this morning by NPR's Joel Rose on the FCC's broadband reclassification / "Third Way" proceeding (see more here & here) kicked off just today. Listen here to the NPR interview.

The following are some notes I prepared for our talk.

On Friday, May 7th from 9:00 a.m. - 10:45 a.m. at the National Press Club, The Progress & Freedom Foundation will hold a panel discussion entitled, "What Should the Next Communications Act Look Like?" This event will consider the implications of the recent Comcast v. FCC court decision, the FCC's pending "Net Neutrality" Notice of Proposed Rulemaking, as well as other developments which have lead many experts, officials, policymakers and a diverse array of companies to call on Congress to update the Telecommunications Act of 1996. Leading industry veterans will make their case for change, and explain how their proposals can be implemented. Our expect panel will include:

• Thomas J. Tauke, Executive Vice President - Public Affairs, Policy and Communications, Verizon Communications


• Peter Pitsch, Associate General Counsel and Executive Director of Communications Policy, Intel


• Walter McCormick, President & CEO, United States Telecom Association


• Ray Gifford, Partner, Wilkinson, Barker, Knauer, LLP


• Michael Calabrese, Vice President, New America Foundation


• Barbara Esbin, Senior Fellow, The Progress & Freedom Foundation

PFF’s Digital Age Communications Act (DACA) project included a report on spectrum policy by a working group of experts that Larry White of NYU and I co-chaired. That report noted the “widespread dissatisfaction with the legacy command-control-system” and that “the costs associated with inefficient utilization of the spectrum under [that system] have become enormous.” The report went on to endorse a market system as the best way to “assure that spectrum is allocated to its best and highest-valued uses,” noting that “there is no serious contender for a system that can be expected to perform as well or better.”

An (almost) as articulate a case for a market-based system is contained in an article written by Reed Hundt when he was FCC Chairman (and coauthored by Greg Rosston who was also member of our DACA working group). (See IEEE Communications Magazine, December 1995). That article notes that “The key to this investment boom [then occurring in wireless] is the FCC’s decision to grant flexibility in the use of PCS spectrum. PCS licensees have the flexibility to provide the services most valuable to consumers in the same way companies throughout our economy provide the services consumers demand. This is a sea change in FCC policy, and it should be continued.”

This week I appeared on C-SPAN's weekly program "The Communicators" and discussed a wide variety of communications and media policy issues including: the outlook for telecom & media legislation in the new Democratic Congress, the First Amendment treatment of new media technologies, Net neutrality regulation and the need for universal service and spectrum policy reform.

The video can be viewed here and I apologize in advance if I put you to sleep!