Broadband regulation: Why wait for Congress?

A few days after I filed last week's column  the FCC decided not to wait for the legislative process and just give Sen. John Ensign (R-Nev.) a bunch of what he wants plus some things he did not ask for. So far, what we know is from FCC press releases and statements from some of the commissioners (Martin, Abernathy, Copps, Adelstein ) because the actual orders have yet to be released. From this, it is clear that the FCC removed all sharing requirements from telephone company DSL infrastructure, extended wiretapping requirements to facilities-based ISPs and adopted a toothless set of degraded principles relating to Internet service. Congress and the courts will speak on these actions, but it's still interesting to get glimpses such as these into the mind set of today's FCC.

As far as I can tell the FCC did just what Ensign wanted to do; that is, remove the requirement to share DSL equipment while retaining the requirement to resell the underlying copper circuits at reduced rates. The FCC also published a set of principles covering consumer entitlements for Internet service that are close to some of the customer rights in the Ensign bill.

The FCC's version  is quite a piece of work. I had to read it a number of times before I understood how little it said. There are four ringing principles, including being able to access Internet content, run whatever applications you want using whatever devices you want and being able to have competition among providers of different types. But each one on its own and all four as a group are undercut to worthlessness by conditions placed on it.

For example, you can run any application as long as law enforcement says you can. For some of the law enforcement people I've talked to that would mean you could not use a VPN back to the office to read your confidential corporate e-mail. In addition, all four principles are subservient to "reasonable network management," meaning that an ISP could say I can't manage my network if you run that application or access that content.

Both the FCC and the carriers say they do not block customer access to applications and that customers would never stand for it if they did. I won't say they are lying, but a lot of ISPs block e-mail (other than from their own e-mail servers) today, and what choice would the customer have? Under this plan, there are just two providers, and both have the incentive to block customers' access to services they don't have a stake in.

The FCC does not quite know what to do about the Universal Service Fund, so it has told all to keep doing what they have been for a few months while the FCC does yet another study.

The FCC also did basically what it said it would do a year ago and extended general wiretapping requirements to facilities-based ISPs and VoIP providers that interconnect with the public switched telephone network.

So now we know that the FCC's priorities are, in order: 1) protect incumbent carriers, 2) give law enforcement more than it needs and a distant 3) pretend to be concerned about the customer.

Disclaimer: Harvard has more resources than most students need, but that is a good thing. The above observation about a bad thing is mine, not the university's.

Copyright © 2005 IDG Communications, Inc.

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