“Clearly the FCC has some role, either directly or tangentially over broadband, such as with USF reform.” Kyle McSlarrow, President, National Cable & Telecommunications Association, on the proper role for the FCC with regard to broadband.
Consensus is pretty strong that last week's oral argument on the Comcast/BitTorrent argument in front of the DC Circuit was an unmitigated disaster for the FCC. So much so that it appears that the D.C. Circuit may actually strip the FCC of any authority to “regulate the internet.” While one would think Comcast would be cheering at the prospect of eliminating any watchdog over broadband whatsoever, they have been rather frantically backing away and insisting the FCC still has authority to impose network neutrality rules.
Why the odd switch? Comcast, and most other major carriers, never wanted to eliminate FCC jurisdiction. Because while everyone wants the freedom of no rules, they also want some reassurance that if something goes wrong, someone has the authority to step in and fix it before it gets too out of hand. While nobody likes getting a speeding ticket, most folks appreciate having a cop on the beat and rules of the road that tell you what side to drive on to avoid getting in a head on collision. The thought of no one having authority to step in if some major crisis hits, for example AT&T deciding it's tired of losing landline customers to Cox and refusing to complete its Voice Over IP calls, is rather scary to anyone who actually makes a living from having a stable, operating, interconnected global network. While an utterly unregulated Libertarian free-for-all appeals to think tank folks, it generally does not go down well with business folks.
Still, it is good to see that Kyle McSlarow, head of Comcast's trade association, is willing to tell his biggest member when it's wrong. According to the Cable Industry's official spokesperson, the only remaining role for the FCC should be to dispense money through the Universal Service Fund. i.e., the FCC should go from “cop on the beat” to a giant ATM — with the money provided by consumers through USF fees.
The big question for Congress and the FCC is: what happens the next time something goes wrong? You know, another Madison River blocking VOIP, or maybe something new like a company using deep-packet inspection to spy on mail, or simply an interconnection agreement that breaks down and deprives users of access to some significant chunk of the network? Those are not situations where McSlarrow's ATM vision of the FCC will provide a heck of a lot of relief. But we now live with the likelihood that if something goes seriously wrong with the infrastructure responsible for billions of dollars in commerce and critical infrastructure for everything from healthcare to education to energy. If something goes down, “Judge Sentelle took our authority away” is not going to go down very well for those whose lives and business are disrupted.
Even Comcast understands (too late) that there is something reassuring about having someone who has authority to take a steady hand and resolve critical disputes. After all, even someone speeding wants to think that if they crash and call 911, someone will answer. If you called 911 and got an ATM instead, you wouldn't exactly be thrilled. Perhaps Mr. Cohen can explain to Mr. McSlarrow that the American people will not feel quite as safe with the thought of an ATM on the corner rather than a cop on the beat. Or we can all just hope nothing ever goes wrong with the internet ever that might require someone have authority to fix it.