Regulations Meant for the Rotary Phone Still Govern the Internet

Matthew Benoit/Shutterstock.com

Virtually all corners of the Internet ecosystem are affected.

In the midst of the gonzo traffic of back-flipping mini-drones, driverless cars and football fields of mobile Internet-fueled innovation at the Consumer Electronics Show in Las Vegas last week—FCC chairman Tom Wheeler sounded downright presidential.

While typically a compliment, in this instance it sparked cause for concern. For months, chairman Wheeler has led a thoughtful and informed debate on the thorny issue of network neutrality, carving a careful path down the center by making clear that to foster innovation, openness, and competition, regulation must be the last resort.

All that appeared to fly out the window like one of Hunter S. Thompson’s cigarette butts when Wheeler took the stage in Vegas, declaring his new-found fervor for what some call the nuclear option: Title II regulation of the Internet. (If you are fortunate enough not to be too deeply mired in the details of this debate, Title II refers to the rules congress drafted decades ago to govern rotary phones.)

What changed on the road to Vegas to cause Wheeler’s U-turn? The 11th hour intervention of president Obama. His unprecedented net neutrality video in November arrived just as the FCC neared completion of its rigorous independent policy process that engaged congress, consumers, public interest groups, trade associations, other governments, labor unions, think tanks and businesses small and large in dialogue about how to shape the most appropriate and effective open internet rules.

The Obama administration, of course, is right to want to ensure that all Americans can continue to reap the many benefits of an open internet. How we best achieve that is what’s in question.

If Wheeler does indeed follow the president’s lead on Title II, it could cut an indiscriminate path through both core and edge internet innovators, exposing internet companies of all shapes and sizes offering any sort of transmission component to a puzzle palace of potential obligations and fees, from pricing restrictions to universal service funding requirements, and a raft of government reporting rules. It would also pour molasses over the nation’s mobile broadband ecosystem which remains by far the most innovative, competitive, and fastest-growing of all broadband services precisely because it has never been subjected to this most burdensome and restrictive of our nation’s regulatory regimes.

Virtually all corners of the internet ecosystem could be impacted, including over-the-top services like Netflix, music streaming services like Spotify and Pandora, cloud services like Amazon’s and Microsoft’s, advertising served over the internet like Yahoo’s and Facebook’s, and voice-over-internet services like Skype, Viber, WhatsApp, Facetime, and Google Hangouts, not to mention the many newer and smaller entrants seeking to compete with them. Old rules designed for early 20th century technologies like the rotary phone shouldn’t be allowed to impede the internet’s future.

Wheeler appears to believe that the FCC can ease the impact of this regulatory steamroller by granting “forbearance” from certain of Title II’s most onerous requirements. But as any communications lawyer can attest, forbearance proceedings at the FCC are typically subject to a lengthy evaluation process, and  potentially costly legal challenges. While it is a full employment plan for regulatory lawyers, the Title II regime is plainly a risky deal for internet and technology companies and investors of all shapes and sizes, and the hundreds of millions of mobile broadband consumers who depend on them.

Updated legislation could set effective rules of the road to protect consumers without letting Title II drive the internet into the ditch. 

By strong-arming Title II, the president peremptorily brushed-aside other more viable options. Last year the US Court of Appeals for the DC Circuit held that internet providers could be regulated under the far-more-workable statute of the Telecommunications Act known as Section 706, which would provide a more flexible, case-by-case approach to safeguarding the open internet. The FCC could also work with the internet community to develop a set of voluntary yet enforceable open internet principles. Recognizing the threat posed by Title II, congress also has shown real interest in this area. Updated legislation could set effective rules of the road to protect consumers without letting Title II drive the internet into the ditch. It could also help prevent years of innovation- and investment-sapping regulatory uncertainty.

By embracing Title II internet regulation, the president also turned his back on one of the most successful policy frameworks ever conceived in Washington—a bipartisan framework guided by the principle that when it comes to innovation policy, government’s greatest contribution is to show restraint. This view has underpinned almost two decades of internet-fueled innovation and economic growth for our nation.

It also seemed to define Wheeler’s regulatory philosophy, summed up by his comments as recently as September that “incentivizing competition should precede regulation.” This bedrock principle still holds despite the 11th hour intervention of the president and his political advisers. Indeed, the White House’s incursion into the work of an independent regulatory agency will undoubtedly grab the attention of a freshly emboldened congress, raising what is quickly becoming a central question: Should such a dramatic shift in US policy—one with far-reaching impact on the nation—be left to unelected officials?

Wheeler recently wrote a book about the leadership lessons we can learn from Abraham Lincoln’s use of telegraph technology to communicate with his senior administration officials and generals.

In the wake of another president’s use of the modern-day equivalent of the telegraph, Wheeler has the opportunity to apply his book’s lessons as he charts the proper course for the future of our open internet.

Assuredly, the inventive Lincoln, the only American president to hold a patent, would challenge policymakers to be guided not by post-election politics, but by the facts on the issue, the choices of our consumers, and the inspiration of our innovators.

That is why what Wheeler said last week in the desert was so contradictory and contrary to the cause of maintaining the open and dynamic internet we all enjoy. For the US economy, American innovators and consumers the world over who are eager to see what’s next, here’s hoping what was said in Vegas truly stays in Vegas.

(Image via Matthew Benoit/Shutterstock.com)

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.