Listening to Yogi on Interconnection and Net Neutrality 4

I’m returning from a packed event, hosted by the Progressive Policy Institute, on the FCC’s role in Internet interconnection.  It was a good discussion.  And I’m glad to see these issues getting the attention they deserve.  I was the only panelist calling for an ongoing FCC role as a backstop for interconnection agreements, which I’ve advocated in my Only Connect (2007) and No Dialtone (2014) papers.  The others were more concerned about the dangers of regulation than the threats from anticompetitive behavior.

It was an interesting reversal from the conversations I’ve been involved in the past month about network neutrality.  I seem to be one of the few experts who likes FCC Chairman Wheeler’s proposed approach of using authority under Section 706 of the Communications Act to protect the open Internet.  Most of those who, like me, believe that’s an important goal see the only solution as reclassifying broadband access as a regulated “telecommunications service.” The FCC is, appropriately, asking questions about both approaches.

One reason I think the 706 route is simpler and more direct is that it’s the only approach to FCC jurisdiction in this area that has actually been validated in court.  It may well be that reclassification could make it through the legal gauntlet, not to mention the political gauntlet, but there’s a fair distance from there to there.

Just before Memorial Day weekend, there was another decision that strengthened the FCC’s hand under Section 706.  In a case involving the FCC’s reform of universal service funding, rural telephone companies and others argued that the FCC had no authority to mandate the availability of broadband.  By retaining its classification of broadband access as an “information service,” they argued, the FCC gave up its ability to utilize the public policy tools that traditionally applied to regulated telecommunications carriers.  Sound familiar?

The court independently reached the same conclusion as the District of Columbia Circuit, which decided the Verizon v. FCC case about network neutrality.  Section 706(b), the 10th Circuit found, gives the FCC independent authority to take appropriate steps that it deems necessary to promote broadband deployment.  Calling something an information service doesn’t establish a regulation-free zone. It just puts limits on the FCC’s actions to meet the terms of Section 706, and to allow companies some room for individualized negotiation.  Which strikes me as not inherently a bad thing.

For both Internet interconnection and network neutrality, the challenge is to implement an approach somewhere between the intrusive price regulation traditionally applied to common carriers, on the one hand, and blindness to the dangers of gatekeepers in network industries on the other. I continue to believe that, while there are other routes the FCC could have taken over the past decade, and Congress should by now have fixed a communications law that everyone agrees is broken, our best bet is to accept reality as we find it.  The Section 706 approach isn’t pretty, but it seems to work in court. For anyone familiar with the FCC’s less-than-sterling judicial record in recent decades, that shouldn’t be taken lightly.

As Yogi Berra once said, “If you come to a fork in the road, take it.”