Scott Cleland – Net Neutrality Update: Level 3, “revolution,” & Supreme Court

by Mike Wendy on February 22, 2011

I’ve reposted Scott Cleland’s excellent analysis from last week’s truly remarkable Net Neutrality events on Capitol Hill.

Thanks, Scott!

__________________________________________

Net Neutrality Update: Level 3, “revolution,” & Supreme Court

There were lots of important net neutrality developments worthy of comment this week:

  1. Level 3’s regulatory opportunism failed;
  2. There were threats of “revolution” if the FCC Open Internet order is overturned; and
  3. The FCC’s claimed support at the Supreme Court.

First, I would like to applaud the FCC Chairman for making it clear before Congress that the FCC’s Open Internet order “doesn’t change anything to existing peering arrangements” and that the FCC “hopes those parties settle and resolve it.”

  • The FCC order is bad enough in regulating competitive broadband providers that have done nothing wrong, without regulating the competitive Internet backbone as well.
  • What is hard to reconcile here is how the FCC can recognize a competitive Internet backbone market, but can’t seem to recognize a competitive market for broadband service.
    • A big reason for this FCC blind spot is the FCC’s stubborn unwillingness to recognize the obvious reality that users/consumers routinely substitute wireless services for wireline services all the time.
    • But if the FCC acknowledged that obvious competitive fact, and then recognized that the broadband market was fully competitive, then the FCC would not have any basis or pretext to regulate the broadband Internet, and the FCC bureaucracy could not remain fully relevant in the competitive Internet age.
    • The linchpin of the FCC’s regulatory relevance in the Internet Age depends on the FCC continuing to deny the undeniable, that wireless services compete DIRECTLY with wireline services most everywhere most all the time!

Second, it was truly remarkable this week that Silicon Valley’s representative, Congresswoman Anna Eshoo, warned that if the Congress overturned the FCC’s Open Internet order: “There will be a revolution in this country.” This apparently is a not so subtle reference to the Egyptian revolution that Silicon Valley has tried to take credit for.

This threat that “there will be a revolution in this country” if the FCC Order is overturned, is completely at odds with the constitutional and political facts of this situation.

  • How weird is it that when three unelected officials at the FCC preemptively regulate (i.e. detain indefinitely without charge) an industry that has not done anything wrong, someone claims that Congress — the people’s constitutional voice — should not become involved in any way or their will be a “revolution” by the people?

I would hope Representative Eshoo is not somehow implying that the American people support unelected FCC officials over the duly elected representatives elected only four months ago?

  • America is not Egypt, we have a functioning democracy and Representative Eshoo’s party was elected democratically to lead the Administration and the US Senate.

“Revolution” is also a weird word choice or metaphor here because it is well known in Congress that candidates that publicly professed support for net neutrality went 0-95 last November.

  • Would it then be a FreePress orchestrated “astroturf” “revolution?”
  • Or a Silicon Valley social media “revolution?”

Third, the FCC indicated in testimony before Congress that it believed that the US Supreme Court would support the FCC’s authority in Comcast vs the FCC.

  • If the FCC really believes that, why did the FCC not avail itself of its Constitutional prerogative to appeal the DC Appeals Court decision to the Supreme Court?

In sum, America’s Constitutional democracy affords opponents of net neutrality regulation many peaceful avenues to seek redress of their grievances.

  • They can and are appealing to the courts.
  • They can and are able to use existing congressional mechanisms to have the House and Senate vote on:
    • A resolution of disapproval;
    • Appropriations bill amendments;
    • Authorization bill amendments; or
    • Oversight findings.

Real democracies operate under Constitutional due process and separation of powers, and lawmaking via duly elected representatives.

  • Why does it appear that net neutrality regulation proponents are so afraid of the US Constitution and real democracy in action?

{ 0 comments… add one now }

Leave a Comment

Previous post:

Next post: