The Incredible Shrinking FCC
The Incredible Shrinking FCC
The Incredible Shrinking FCC

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    When Federal Communications Commissioner (FCC) Michael Copps issued a brief, two-sentence reaction to the news of a policy agreement between Verizon and Google over Net Neutrality, he deliberately emphasized one word.  In bold face and italics, Copps said that a “decision” had to be made, to guarantee an open Internet.

    “Some will claim this announcement moves the discussion forward.  That’s one of its many problems.  It is time to move a decision forward—a decision to reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations.”

    Copps’ highlighting of that one word may have applied in his statement to the current issue surrounding, but it also could apply as well to the workings of the entire FCC in the little more than a year since the Commission reached its full complement of members on August 3, 2009 with the swearing in of Commissioner Mignon Clyburn.

    In a phrase from author Stephen King, (from “The Colorado Kid”) the Commission has been “picking at crumbs while there was a roast sitting on the table.”  Indeed, when the Commission became whole last summer, there was a veritable buffet of tempting items from which to choose, any one of which would have set the FCC off on a course of action and shown that the Obama FCC represented the change for which the president’s supporters voted and in which they believed.

    On February 20, 2007, Skype filed a petition with the FCC asking for the common-sense ruling that would apply the 1968 decision allowing any wired telephone to be connected to the network to the wireless world as well.  In its petition, Skype said that carriers have disabled or crippled features of wireless devices to favor their own applications.  All the comments and replies were filed.  The Commission only had to write an order and take a vote to approve the consumer-friendly policy.

    On December 11, 2007, Public Knowledge and others filed a petition with the FCC asking that texting and accompanying short codes be protected.  The petition came in the wake of Verizon’s decision not to issue a short code to NARAL Pro-Choice America because the group was too controversial.  As PK and others argued, “Discrimination in providing mobile services is contrary to the principles which have governed both wired and wireless carriers for decades.”  All of the comments and replies were filed.  The Commission had only write an order to approve this consumer-friendly policy for the millions of people who text billions of times each yet.

    On May 20, 2008, rural cellular carriers asked the FCC to take a look at deals between carriers with cellphone manufacturers which left the rural consumers unable to have access to those phones if a particular carrier doesn’t provide service in a given area. The Rural Cellular Association asked the Commission to “initiate a rulemaking to investigate the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers and, as necessary, adopt rules that prohibit such arrangements when contrary to the public interest, consistent with its obligations under the Communications Act.”  All of the comments and replies were filed.  The Commission only had to write an order to approve this petition to help millions of rural subscribers.

    Right there are three key groups of people in the country – wireless customers generally; those who use text messaging, generally younger customers; and rural customers – who could have been helped with minimal effort from the FCC.  No new proceedings would have been needed.  Even today, none of those petitions has been acted upon.

    The FCC under Republican Chairman Kevin Martin approved the use of the spectrum between digital TV channels, the so-called “white spaces” for use in unlicensed applications.  A couple of technical issues remained, which could have been settled rather easily.  Final approval of white spaces would result in a new flood of innovation.  Those clean-up items have yet to be approved, although rumor has it they could be soon.

    In terms of actually issuing orders, the FCC’s record to date is pretty minimal.  Since last fall, the Commission has issued some orders on making services more available for the hard of hearing.  They closed some loopholes for cellular roaming agreements – cleaning up a previous order, not starting something new.  The Commission established a new interoperability center and an office for Native American affairs.  The Commission adopted a rule, effective through next June, to allow more widespread use of broadband services funded by the E-rate.  These, and other orders, are helpful and useful, but in the grand scheme of things, they fall into the “crumbs” rather than the “roast” category.

    The FCC has issued lots and lots of proposed rules, none of which have come to fruition, many which result from the National Broadband Plan, an exercise which cost $20 million and had the Commission hiring the equivalent of a whole new Bureau to produce a 360-page report.  The Omnibus Broadband Initiative included 36 public workshops and 31 public notices asking for comment, generating 74,000 pages of comments from 700 parties.

    The final product resulted in a good framework for moving ahead with how to use broadband, but very little on how to increase supply or increase competition.  There were some good studies produced as part of the exercise, although the FCC studiously avoided the results and recommendations from the Berkman Center at Harvard University, which showed how and why other countries are ahead of the U.S. due largely to a regulatory strategy the FCC ditched during the Bush years.

    The record so far is indicative of how the FCC has functioned to date, and reflects the way the Commission has shrunk from its responsibilities to deal with crucial issues about the future of the Internet.  Instead of issuing orders in dockets on a non-discriminatory Internet or on re-establishing the FCC’s ability to protect consumers and set rules of the road for broadband, the Commission has abdicated its responsibilities. 

    While it has an ample record on both of those Internet issues, the FCC ignored the evidence and arguments.  Instead, it encouraged private negotiations, first with a group of six selected participants, which resulted in the famous side deal between Verizon and Google, for which Google has been roundly criticized.  Even after all the flak over that, the FCC is at it again, fostering more talks among more companies.  As my colleague Harold Feld has asked, if the public didn’t like Verizon and Google splitting up the Internet, what difference will it make if Microsoft and AT&T are in the room making their own deal?  The public at least could contribute ideas and arguments in a rulemaking proceeding.  That’s how it is supposed to be done.  Everyone was shut out of these FCC-encouraged negotiations except for the privileged industrial few.  It’s not exactly how one would have envisioned an Obama FCC conducting business.

    The goal of all of these talks is not to fashion an FCC rule, but instead to produce a framework which would then be written into legislation.  One point of any legislation would, to the relief of some at the FCC, lift from the Commission the burden of carrying out its responsibilities to make telecommunications policy.  The FCC in the Bush years played its little unsuccessful shell game with Internet access without any hoots and hollers of Congressional prerogatives.  That benefited industry.  Correcting it for the benefit of consumers raises the hackles of those legislators worried about Congressional authority.  But we’ve been through that

    Any legislation, particularly legislation based on talks from big companies, would of necessity be very complex, create all sorts of new categories of services, with accompanying exceptions and exemptions and would by nature have to satisfy the telephone and cable industry.  And people think a simple regulatory reversal (known as “reclassification”) is drastic?  It would sure be a lot more simple than what Congress will come up with.  Chances are that any bill would kick some of the issues back to the FCC, which, given the agency’s track record, poses its own problems.

    It’s past the time to stop Congress from starting the legislative process, even though the Congressionally sponsored series of talks with representatives from industry and public interest groups produced nothing new.  It’s not past the time for the FCC to step up and enact the policies it should enact.  That’s what people voted for – not for the Commission to turn over its policymaking to big companies.  Chairman Julius Genachowski still has time to be a hero to the Netroots, but time is running out.  He should follow his colleague Commissioner Copps’ advice and make some decisions.