Policy Blog Entries by Susan Crawford

When should a court defer to an agency’s interpretation of its governing statute and/or its own regulatory actions?

I got interested in this question because deference by a flummoxed Supreme Court gave us Brand X, with its ahistorical “this looks really tricky so we’ll let the FCC categorize highspeed internet access” approach.

In this week’s Third Circuit opinion about the Janet Jackson Super Bowl incident, the court doesn’t defer much.

About 16 months ago, I heard Ed Richards of Ofcom speak at a CITI conference at Columbia, and blogged about it here. I remember thinking that Richards didn’t seem to think that highspeed access to the internet was all that important. The market had to demand it, and the market wasn’t being demanding. Also, he wasn’t interested in government intervention to support highspeed access.

More than 40 years ago, the FCC was worried about telephone companies using their power over communications to control the then-nascent (and competitive) data processing marketplace. The Bell System at that point was already banned from providing services that weren’t common carriage communications services (or “incidental to” those communications services).

In Computer 1, the Commission tried to distinguish the use of computers for processing information from the use of computers as part of communications, with the goal of not allowing the Bell System into the data processing business.

This is the first time I’ve been able to attend Supernova, and it seems like a fine conference. It’s all being made available online:

• Conversation Hub:
  http://www.conversationhub.com

• Live video stream:
  http://www.mogulus.com/supernova2008

• IRC Chat:
  irc://irc.freenode.net/supernova2008

• Twitter feed:
  http://twitter.com/supernova2008

• Yahoo Pipe:
  http://pipes.yahoo.com/pipes/pipe.info?_id=055fe30a2c9cbcfc197e494d6db2885a

The news that Comcast, Time Warner, and AT&T are all considering capping use of their networks — so that “overuse” would trigger a charge — has prompted intense discussion of just why these network operators are moving in this direction. One camp suggests that these operators have to do something to manage congestion, and because any protocol-specific discrimination plan raises howls of protest from the Net Neutrality side of the fence adopting bit-usage discrimination schemes is inevitable. It’s the least-bad approach, following this view.

The Net Neutrality side, for its part, points out that (1) each of us will fall into the 5% of “over-users” at some point or another, (2) the operators want to make sure that they remain the chief sources of video content, rather than allowing internet access to video undermine their business plans, and (3) it seems odd to manage to scarcity rather than invest in improved access for everyone. It’s as if the operators would prefer to keep internet access expectations at 2003 levels. And if you really wanted to manage congestion you’d charge differently for usage at different times. (Meanwhile, Korea.)

In The Deal of the Century, the 1987 classic account by Steve Coll of the breakup of the Bell System, one of the Bell local operating company presidents (pre-breakup) is furious about MCI’s attempts to build microwave private lines for companies. Here he is, arguing to the AT&T chairman that MCI has to be stopped:

There are large amounts of revenues that are vulnerable, which we can preserve if we choke off now. I think you have to hit the nails on the head.

The AT&T Chairman, John deButts, eventually follows his advice - and when MCI comes to AT&T asking for interconnection agreements in major cities so that it can sell private line services, AT&T delays, avoids, and then directly challenges MCI. Coll says deButts “call[ed] for nothing less than a public anointment of Ma Bell’s right to exercise its monopoly in the national interest” in this speech:

The new Clearwire could be game-changing, but the rules of the game may not be quite as Clearwire presents them. I have been wondering since last July whether something significant would happen in the Google/Sprint world. The deal announcement earlier this weekseems to be that key development. (Here’s the press release and here are slides describing the transaction.)

In response to my post a couple of days ago about the possibility that VZ might not plan to comply with the 700 MHz “open platform” rules, someone wrote:

would you have the FCC mandate that every mobile device must be capable of running every operating system? If Verizon sells me a BlackBerry, should the device allow me to install Android, Palm OS, Windows Mobile, or Symbian OS? Obviously, Google believes the answer is yes (they will make the most money if they can install their OS on every device). Is it good for consumers if the FCC starts managing software specifications for computers and mobile devices?

Last Friday (HT: IPDemocracy), Google filed a petition [PDF] asking that the Commission ensure that Verizon understands what those “open platform” requirements for the C Block really mean. Verizon has taken the position in the past that its own devices won’t be subject to the “open applications” and “open handsets” requirements of the C Block rules, and Google says it is concerned that Verizon doesn’t plan to follow those requirements in the future.

This is big. Here’s the background.

Going backwards upside down. That’s what we’re doing with telecommunications policy in the U.S.

The Comcast affair should prompt a re-examination of many decisions the FCC, Congress, and the courts have made over the last few years. When the FCC reports on its reactions to Comcast’s activities, the right response will be “You’re asking the wrong question.”

“What is reasonable network management” isn’t the question we should be asking. Instead, we should be asking ourselves “Why do the dominant network operators always win?” We don’t need retrospective fault-allocation - instead, we need a prospective legislative/structural plan for digging ourselves out of the hole we’re in.