Definitions Are for Losers – FCC’s BIAS is Title II

by Mike Wendy on March 17, 2011

FCC Chairman, Julius Genachowski, recently reiterated that the FCC’s new Net Neutrality regulations are just “light touch rules of the road that preserve Internet freedom and openness…” Of course, the light touch stuff only applies (for the time being, that is) to network providers through a new definition called broadband Internet access service, or BIAS.

The FCC defines BIAS as:

A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints…

This definition looks a lot like a hybrid of the definition for telecommunications services presently in the Telecom Act (more on that later).  Still (purportedly), it isn’t telecommunications, and that is important.

In 2005, information services (i.e., the Internet) transmitted via telecommunications (i.e., the wire into one’s home) became officially “integrated,” essentially becoming one service.  Instead of being classified as telecommunications services, though, the two together were treated as information services.

Because the Telecom Act regulates only the provision of telecommunications as Title II services, information services provided by telephone companies, cable companies and others – even though integrated with telecommunications – remain unregulated by the FCC.

That was, of course, until last December 21st, when the FCC imposed its new Net Neutrality regulations.  Now, I’m not sure what’s going on.

Why?

Well, I get this tweet from Art Brodsky of Public Knowledge (the lobbying group with self-proclaimed, legendary connections to Julius Genachowski), which trills:

“@polisoniccom BIAS is a telecommunications service. It is legally different from a web site or application.”

And then I check out some of his writing of late, which explains that “What the FCC did was traditional telecommunications regulation — the kind of thing it is supposed to do.”

And then I tweet (a couple of times, mind you) Art and the group’s policy deacon, Harold Feld, something that goes like, “Hey, ‘sup with your definition of BIAS because, quite frankly, it looks like you’re saying that it’s telecommunications, and that would mean that the FCC ‘reclassified’ the services, which the Chairman says the FCC didn’t do.”

And then no response.  Just ether (I know – they’re busy, lobbying, throwing parties, doing the night shift. Stuff, I’m told, that entrenched lobbyists do).

I’m concerned, however.  You see, if information services have become untwined from telecommunications, that would be a big deal.  That’s 75-year-old Title II, telephone regulation.  Certainly not the “light touch” regulation we’ve been sold.

I’m not alone in this larger concern.

One may remember that at last week’s House hearing on the FCC’s Net Neutrality rules, one network provider said that, though Net Neutrality regulations were certainly “not preferable,” the provider was chastened into accepting them because they were confronted with the real possibility that they could become worse.  That is, that they could become the nuclear option of Title II regulations.

We’re told that the Net Neutrality Order doesn’t regulate Internet services through Title II, but only through its “ancillary” authority (lesser, and still debatable, non-Title II powers).  But, I must admit, I’ve always wondered how the FCC can regulate information services at all without untwining / reclassifying the service into unregulated information services, and Title II regulated telecommunications services.

In my mind, the only surefire way that the FCC could do that and withstand court scrutiny would be to show a market delta or failure; something more than a theoretical failure or mere, potential bottlenecks.  But that’s data that it can’t really show.  Indeed, the Internet has only exploded since 2005 when Internet services became formally one offering. And the market continues to grow.

Besides, the agency only created “light touch rules of the road,” right?

Maybe not.

FCC Commissioner Robert McDowell believes the Commission’s characterization of its new regulations is hooey, noting in his dissent of the Net Neutrality Order:

In another act of legal sleight of hand, the Order claims that it does not attempt to classify broadband services as Title II common carrier services.  Yet functionally, that is precisely what the majority is attempting to do to Title I information services, Title III licensed wireless services, and Title VI video services by subjecting them to nondiscrimination obligations in the absence of a congressional mandate.  What we have before us today is a Title II Order dressed in a threadbare Title I disguise.  Thankfully, the courts have seen this bait-and-switch maneuver by the FCC before –and they have struck it down each time.

As I have written about here, I tend to agree with McDowell.  Cloaked in simple language, the Order sure imposes obligations that look a lot like Title II regulations. If the only difference here between the two is that the so-called “light rules” remain “light” due to “regulatory humility” (a definition I do not see in the CFR), then don’t we really have a reclassification by another name?  I mean, what prevents the FCC from being “regulatorily hubristic”?  From going “postal” and “Title II-ing” network providers back into the last millennium?

Not much.  Especially when you’ve got the majority, and the Agency’s own procedures prove little obstacle.

Was Art Brodsky in-artful when he tweeted BIAS is telecommunications?  Nope.  I think the activist community knows exactly what the game is, but has let slip what is already widely believed at the Commission: Definitions are for losersWho needs ‘em when they only constrain authority?

Regulations are meant to bend and expand.  That is their nature.   As Reason.com’s Peter Suderman notes, the new Net Neutrality regulations “give the FCC its first foothold in the core of the Internet.”

From there, imagine the possibilities?

And that’s the exact problem.

 

 

{ 1 comment… read it below or add one }

txpatriot March 17, 2011 at 7:26 pm

Court reversal of this goofball (and statutorily unsupportable) decision cannot come fast enough.

“Market failure? We don’t neeed no stiiinkin’ market failure . . . !”

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