The author left the Obama administration in disagreement.
Susan Crawford, a former special assistant to President Obama for
science, technology and innovation policy, is a professor at the
University of Michigan Law School.
An Internet for Everybody
By SUSAN CRAWFORD
Published: April 10, 2010
Ann Arbor, Mich.
LAST week, a federal appeals court in Washington ruled that the Federal
Communications Commission lacks the legal authority
<http://www.nytimes.com/2010/04/07/technology/07net.html> to tell
Comcast not to block certain uses of its Internet access services. This
decision has become a rip-the-Band-Aid-off moment for the regulatory
agency, forcing it to reconsider its effort to impose “network
neutrality” by requiring that Internet access providers treat all
content equally.
It also puts a substantial roadblock in the path of the commission’s
National Broadband Plan,
<http://www.nytimes.com/2010/03/13/business/media/13fcc.html> which
proposes to spend billions of dollars to help provide Internet access,
rather than phone access, for people in rural areas.
But the F.C.C. needn’t change either strategy. It can regain its
authority to pursue both network neutrality and widespread access to
broadband by formally relabeling Internet access services as
“telecommunications services,” rather than “information services,” as
they are called now. All the commission needs to do is prove it has a
good reason.
It wouldn’t be the first time that the F.C.C. relabeled Internet access
services — and certainly not the first time it addressed the need for
equal access. Until August 2005, the commission required that companies
providing high-speed access to the Internet over telephone lines not
discriminate among Web sites. This allowed innumerable online businesses
— eBay, Google, Amazon, your local knitter — to start up without asking
permission from phone and cable companies. There was nothing unusual
about this legal requirement; for more than 100 years, federal
regulators had treated telegraph and telephone service providers as
"common carriers," obligated to serve everyone equally.
But under the Bush administration the F.C.C. deregulated high-speed
Internet providers,
<http://www.nytimes.com/2002/03/15/business/technology-briefing-telecommunications-fcc-rules-on-cable-access.html?pagewanted=1>
arguing that cable Internet access was different from the kind of
high-speed Internet access provided by phone companies. Cable Internet
access providers, the commission said, really offered an integrated
bundle of services — not just Internet connection but also e-mail, Web
hosting, news groups and other services. So the F.C.C. declared that
high-speed Internet access would no longer be considered a
“telecommunications service” but rather an “information service.” This
removed all high-speed Internet access services — phone as well as cable
— from regulation under the common-carrier section of the Communications
Act.
This was a radical move, because it reversed the long-held assumption
that a nondiscriminatory communications network was essential to
economic growth, civic welfare and innovation. At the same time, the
F.C.C. said that it would retain the power to regulate Internet access
providers if the need arose, under another section of the Communications
Act.
The Bush F.C.C. hoped that deregulation would prompt greater competition
in Internet access services. But a wave of mergers instead reduced it.
Prices stayed high and speeds slow. And eventually the carriers started
saying that they wanted to be gatekeepers — creating fast lanes for some
Web sites and applications and slow lanes for others.
In its decision last week, the appeals court said that the “information
services” label given to high-speed Internet access providers means the
F.C.C. cannot prohibit companies like Comcast from engaging in
discriminatory activities. But if the F.C.C.’s labeling of high-speed
Internet access providers undermines its ability to tell them what to
do, how can it ensure that consumers get the information they need about
real speeds and prices? How can it ensure that basic communications
services — which, these days, means Internet access — are widely available?
The F.C.C. has the legal authority to change the label, as long as it
can provide a good reason. And that reason is obvious: Americans buy an
Internet access service based on its speed and price — and not on
whether an e-mail address is included as part of a bundle. The
commission should state its case, relabel high-speed Internet access as
a “telecommunications service,” and take back the power to protect
American consumers.
Susan Crawford, a former special assistant to President Obama for
science, technology and innovation policy, is a professor at the
University of Michigan Law School.
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"There is nothing more dangerous than a shallow thinking compassionate
person" Garrett Hardin
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