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Re: NOTE DATE FCC Moves Closer to Regulating the Internet
From: David Farber <dave () farber net>
Date: Thu, 11 Sep 2008 09:19:10 -0400

The Esbin paper is worth reading even if you disagree with her and PFF. djf

Begin forwarded message:

From: Brett Glass <brett () lariat net>
Date: September 11, 2008 7:52:13 AM EDT
To: dave () farber net, "ip" <ip () v2 listbox com>
Subject: Re: [IP] NOTE DATE  FCC Moves Closer to Regulating the Internet

Tech Law Journal wrote (in 1998):

The Congress, courts, and until recently, the FCC, have held to a
distinction between "telecommunication services" and "information
services" (also referred to as "basic" and "enhanced," respectively).
The former are subject to FCC regulation -- the latter are not.  The
FCC maintains in this Report that it still adheres to this dichotomy.
However, it seeks to redefine certain information services as
telecommunications services.

In fact, the FCC and the courts have in the past decade gone the other way, redefining many "telecommunication services" as "information services." (Some would say that they have gone too far in this regard by claiming, as in the Brand X case, that access to essential facilities -- that is, telecommunications infrastructure which is infeasible to duplicate -- is an "information service.")

The Report argues too that with technological convergence "it will
become increasingly difficult to maintain that particular facilities
are 'cable' as opposed to 'telecommunications'."  And because of this,
existing "regulatory categories," claims the Report, "must necessarily
collapse of their own weight in the digital communications world of

While the FCC report does recognize convergence, it does not -- contrary to the impression given by this article -- does not advocate regulation of the Internet. In fact, it says:

"The challenge for the regulator, at each step, is to examine the underlying purposes and policy goals behind existing regulatory categories, and to apply them only where those purposes and policy goals make sense. Any regulatory efforts in this arena should begin with an analysis of whether the operator in question exercises undue market power over an essential service or facility necessary to provide an essential service."

Barbara Esbin, the author of the 1998 FCC report, has recently argued that the FCC, by attempting to regulate and micromanage ISPs and the Internet in its recent Comcast order, has exceeded its authority and may be in danger of becoming a "runaway agency." In her white paper titled " The Law is Whatever the Nobles Do: Undue Process at the FCC" at


she says,

"The FCC’s action highlights a greater problem. Now that the FCC has asserted its authority to regulate Internet provider broadband network management practices, the question arises, "who will regulate the regulator?" This is not an idle inquiry, but rather an urgent problem. For apparently what we have on our hands is a runaway agency, unconstrained in its vision of its powers and unconcerned about the serious reservations expressed by the current Administration and members of Congress. As dissenting Commissioner McDowell stated: "Under the analysis set forth in the order, the Commission apparently can do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment."

Her paper, and the arguments in it, are well worth reading.

--Brett Glass

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