Urgent FCC Crisis

Urgent: The FCC's Genachowski Is Playing With Fire
And America/Radio is About to Get Burned
A message from Eric Rhoads, Radio Ink

As in a magic show, things are not always what they appear to be. In Washington, gentle names are given to horrible ideas so they appear fine to the general public. The FCC and Chairman Julius Genachowski are about to pull the wool over the eyes of America, then clobber us over the head.
The FCC is due to vote December 21 on a set of new "net neutrality" regulations. (Sounds harmless, right?) The open meeting at which the vote will be held was moved from December 15, leading some to speculate that the commission wanted to bury this key vote in holiday distractions. But that isn't really Chairman Genachowski's style.
Indeed, Genachowski has been quite straightforward about his desire to get regulatory control of the Internet. So was his predecessor, Kevin Martin, whose attempt to sanction Comcast for throttling down BitTorrent traffic ultimately led to the Comcast v. FCC decision, in which the DC appeals court ruled that the commission had overreached its authority in attempting to tell Comcast how to run its network.
But sharks want to swim and regulators want to regulate, and the commission couldn't shrug off that Comcast decision. So one of Genachowski's leading priorities as chairman -- indeed, practically his only public priority -- has been to get FCC control over the Internet. To that end, he has adopted the language of "Net neutrality" and the "open Internet."
Beware of a wolf in sheep's clothing.
What, exactly, does Genachowski want to do in the name of openness and neutrality? It's all fairly murky right now. The commission hasn't released the exact draft rules on which it intends to vote. Keeps us guessing and reduces flak.
But the rules will, Genachowski said, involve a "transparency" requirement (a fairly hilarious demand from an agency that won't make public the industry-changing rules on which it plans to vote in less than three weeks). There will also be a ban on "unreasonable discrimination in transmitting lawful network traffic." But the rules will allow for "reasonable network management."
All very (ahem) reasonable, right? But, setting aside the question of what the FCC will consider to be reasonable, and the likelihood that any definition will be flexible enough to adjust as technology develops rather than simply stopping that development in its tracks, the fact is, how private businesses manage the infrastructure in which they have invested their own resources is none of the FCC's concern.
And, more to the point, "net neutrality" is a solution to an imaginary problem.
Though there have been periodic disputes, no one is contending that telecom or cable companies are interfering with broadband traffic in any systematic way. What worries the "net neutrality" brigade is the notion that these sinister "gatekeepers" could do it if they wanted to; comments from Free Press and other activist groups are full of references to what these companies could do, or really want to do. (Comcast's ill-considered decision to mislead customers about its blocking BitTorrent was not helpful in this part of the debate. But that was in 2007, eons ago in Internet time.)
Right now, the explosive growth of the bandwidth-intensive Netflix -- and no doubt Netflix rivals to come -- could cause some issues in fairly short order. In fact, Level 3 is duking it out in public right now over Comcast's desire to charge Level 3 more for access to its network now that Level 3 has a contract to supply streaming to Netflix. (Level 3 says Comcast is violating net neutrality principles with the proposed added fees; Comcast says Level 3 wants to reframe long-standing traffic-exchange principles among networks as a net neutrality issue. )
But consumers who find their movie service being degraded or who are being charged extra for "excess" bandwidth will soon find new providers. It will likely get rocky for a while, and then technology and the market will sort it out. This is how it's worked for some 25 years, during which the Internet has merrily thrived with hardly any government regulation at all.
It is also worth noting that Genachowski specified that he is no longer looking to reclassify broadband as a Title II telecommunications service, which would mean treating it as though it were a monopoly phone company. He couldn't get that notion past even the current Congress, which has not been, one might say, averse to government overreach.
The FCC is naturally splitting along party lines on this, with the two Republicans, Robert McDowell and Meredith Attwell Baker, releasing blunt statements in opposition and Democrats Mignon Clyburn and Michael Copps in support.
This will be approved later this month, though Copps, who is ordinarily Genachowski's reliable wingman, is still apparently holding out hope for Title II regulation. Indeed, the fact that Copps is in favor of "Net neutrality" is in itself a pretty good indication that this is not about freedom and openness. Take a look at Copps' latest ideas for broadcasters.
Michael Copps sees it as part of the FCC's mandate to investigate and judge the "state of journalism," and to create tests of a station's "public value," and even to count how many local or regional artists get on the air. What sort of regulation do you suppose Copps will feel is appropriate for an FCC-controlled Internet?
What's this got to do with radio? Radio, like every other media business, is going to rely more and more on the Internet for revenue and content delivery. Digital is already a key and growing part of radio's business model. The FCC would like to insert itself into that part of your business, introducing regulatory uncertainty, unsettling potential investors, and interfering with the natural development of the market and of technology. Does that sound appealing?
To allow the FCC to get its hands on the Internet on the basis that bad things might happen -- things that have natural, market-driven solutions -- would be wildly short-sighted and destructive. Indeed, the very notion that government regulation of any communications medium will lead to greater freedom and openness would be laughable if it weren't so dangerous.
There's probably nothing that can stop the FCC from approving this in a party-line vote on December 21. But some legislators have already vowed that they'll do everything they can to undo it. I urge you to get in touch with your representatives and help make sure that stopping Genachowski and the FCC from taking control of the Internet is a top priority in the new Congress.


Eric Rhoads
Radio Ink
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