McDowell Warns Against Excessive Broadband Regulation
Broadband regulation should be minimal so that innovation remains “robust and unfettered,” said FCC Commissioner Robert McDowell at the Free State Foundation Telecom Policy Conference. Innovation, investment, deployment and adoption “have been growing rapidly with the stability of the current regulatory environment,” he said: “These are positive trends that should be nurtured and strengthened” and “when crafting the National Broadband Plan, the commission’s number one goal should be to do no harm.”
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McDowell weighed in against reclassifying the broadband network under Title II, the common carrier provisions of the 1934 Communications Act. “Modern day information services have never been regulated as common carriage,” he said. McDowell said that in 2002, the commission “examined the early 21st century broadband market and determined that it was far different from the early 20th century plain old telephone service market.” Because of the significant differences, the “commission determined that broadband should be classified as less-regulated information services under Title I.”
McDowell described a broadband system bogged down with tariffs, direct and indirect economic regulation, concurrent federal and state regulation, and other situations that could be problematic if the reclassification were granted. Internet companies offering a voice application will get “tangled up” under such regulatory conditions, he said. The commission must provide a “reasonable and detailed justification for the change based on record evidence,” he said: “Yet so far the record contains scant evidence.” McDowell also urged the commission to be careful not to establish net neutrality rules that infringe on free speech because “countries that regulate the Internet more tend to be less free.”
The FCC seems sharply divided over whether to reclassify broadband. Commissioner Meredith Baker said at a recent event that the change would be a “a step backwards” (CD Jan 22 p3). Commissioner Michael Copps was a strong critic of earlier decisions to classify broadband under Title I -- the general administrative provisions -- to begin with. Chairman Julius Genachowski and Commissioner Mignon Clyburn haven’t said where they stand.
Executive Vice President Tom Tauke of Verizon told us his company would be “very concerned” if the FCC moves toward reclassifying broadband access as Title II service. “It would be a desperate move to try and find jurisdiction. I don’t think it would work legally. In addition, it would demonstrate that our system of government doesn’t work very effectively in dealing with questions of broadband.”
Putting broadband under Title II “simply would put the broadband policy in a framework where it doesn’t fit and it would, I think, result in bad policy,” Tauke said. “But in addition, it is bad politics. Because instead of moving us in a direction where we would be moving toward consensus, it would exacerbate the differences among the players.”
The country has seen significant progress in broadband expansion over the last seven years, McDowell said. “Some form of wireline-based broadband is available to roughly 95 percent of Americans. Cable broadband alone is available to 92 percent of the country.” In 2003, about 15% of Americans had access to broadband in their homes and that number has grown to nearly two-thirds of the country, he said.
McDowell suggested a more-collaborative approach to achieving the commission’s goals: “Working together, we can effectively shine a bright light on allegations of anti- competitive conduct and work directly with the established Internet governing community to resolve controversy.”