November 2010 Archives

November 5, 2010 5:03 PM

Net Neutrality: Too Much Inclusion Excludes Rational Conclusions

I haven't posted a blog in three months, and I'd like to excuse my laziness by just saying that not a whole lot has happened; a statement I stand behind.  However, in the last few days, the 2010 mid-term elections have concluded, and the most recent Net Neutrality Further Notice comment cycle closed yesterday.  This post is probably a little irrelevant now--especially, in light of Scott Cleland's astute observation that the most dedicated supporters of Net Neutrality rules are no longer in Congress.  Still, the issue was dead long before the elections.  How do I know?  Well . . .  

Let Me Tell You Something Before I Tell You Something Else:  Two weeks ago, Hank Hultquist of AT&T had a really clever, insightful blog post comparing the recent Cablevision/Fox public melodrama to the Commission's ongoing Net Neutrality melodrama.  His reasoned conclusion: content holds the cards over distribution.  Last week, Harold Feld wrote a similarly clever blog post, describing the FCC's "Learned Helplessness" when it comes to addressing the market behavior of certain media content owners. 

Both are great reads, and they are somewhat related to my next point.  The points are related in that if you really wanted to rationally regulate the Internet, there is no rationality behind not applying the regulations in a neutral manner, including both the content, distribution, and every provider in between.  Now, I don't believe Chairman Genachowski wants to do this any more than he wants anyone to think it.

Let Me Tell You Something Else:  About a month ago, the Washington Post published an article on Chairman Genachowski.  In the article, the Post says, "[c]all him what you want . . . but don't call Julius Genachowski an Internet Regulator."  Fair enough.  If you took everything that comes into, or out of, the FCC--and the reverberations of Washington policy pundits at face value, you might kind of think that Chairman Genachowski is set on imposing some fairly specific regulations on (at least) broadband Internet service providers (however one defines that term).  But, after watching all four seasons of "Mad Men" in the last four months, I learned that it's important to distinguish what people say they are going to do, from how they actually behave

[Seriously, after living in the DC area my whole life and seeing countless scandals involving politicians, clergymen, celebrities, and all manner of other famous people . . . that observation just hit home . . . from watching a TV show.] 

Kind of humbling when you really think about it, but, hey, I got it.  At least 10,000 maniacs (not the band) have squandered time and untold millions on worthless electronic "paper" at the FCC on this very issue.  Let me say it now:  Julius Genachowski is not an Internet regulator, and he doesn't keep jackalopes, Sasquatches, or unicorns at his house.  Well, maybe not a great analogy--there seems to be a lively Internet debate about whether Sasquatches or jackalopes are real--but neither unicorns nor Net Neutrality rules are real.  How do I know detailed Net Neutrality rules are not real?

Here's how: I've been a lawyer for 20 years, and when judges really want to decide cases--even ones involving big public policy issues like abortion--they impose page limits, and, with the interests of justice in mind, limit participants.  For example, in Webster v Reproductive Health Services, the Court accepted an unprecedented 78 amicus curiae briefs (briefs from non-parties in support of one side or another).  The FCC, in contrast, has accepted . . . well, I don't know, how many comments by how many different parties on the Net Neutrality issue in just the past year.  I don't really know because I think the FCC's electronic document search maxes out at 10,000 comments per proceeding. 

Even if you eliminate the "brief comments" (usually form letters from individual citizens), the number only comes down to about 2,000.  If you exclude "ex parte" notices (of meetings with Commission staff), and "brief comments", then you get down to over 1,400 filings characterized as "comments" or "reply to comments."   Keep in mind, though, that these are multi-page filings, so they took at least a little time to write and file--and 39 parties filed replies just yesterday. 

But let's try to keep it real, and consider that (in immortal words of Kid Rock [from Bawitdaba, 1999], ) "this [NPRM] is for the questions that don't have any answers."  And, lets try to throw out some of the less substantive comments that such questions elicit from certain parties, inter alia, "the crackheads, the critics, the cynics, and all my heroes at the methadone clinic."  But how many crackheads, critics, cynics, and heroes from the methadone clinic were filing "comments" and "replies to comments"? Who knows?  Let's say most.  So this group--not that they shouldn't be taken seriously--maybe accounts for 1000 of these multi-page comments and replies.  Does anyone really expect that the FCC is going to read, understand, and assimilate well over 400 "serious" filings into a cogent set of draft rules in less than a year? 

Now, think about this: after eight years of antitrust litigation, including a trial including millions (some say one billion) pages of evidence, AT&T submitted a 500 page post-trial brief.  Sure, 500 pages sort of seems like a pretty big filing, but keep in mind that this was the culmination of an eight year ordeal that was/is the most important antitrust case in telecom history.  The case was ultimately settled, but the trial court decision was still a relatively concise 189 pages, and was entered less than one year after the trial concluded.  On the other hand, the FCC's first Notice of Proposed Rulemaking, released a little more than a year ago, was over 100 pages.  And, just yesterday, the FCC accepted Reply Comments its Further Notice from September 1st of this year.   

The AT&T antitrust case comparison is just one example of the point that, when a decision-maker really wants to make decisions, it might be better off by "fast-tracking."  Obviously, in a Rulemaking, the Commission can't control what the public sends it, but it can impose rules--like limited comment periods, limited ex parte contact, page limits, and requiring sworn declarations as "evidence."  Think about how you would handle it, if you had to make a complex decision in a short period of time.  Now, after considering the alternatives, do you really think the FCC intends to regulate the Internet?  

Think about that commercial for the executive search cite, where all of the fans start trying to play tennis at the same time, on the same court as two professional tennis players.  Was the guy in the lifeguard chair really refereeing that "match"?  Look at what you see, and ask yourself if you could "ref" this debate (and come up with anything more than the very reasonable Internet principles the Commission adopted in 2005).  As for me, I stand strongly behind Chairman Genachowski--how dare he be called an "Internet Regulator"?