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Re: FROM Esbin -- NOTE DATE FCC Moves Closer to Regulating the Internet
From: David Farber <dave () farber net>
Date: Thu, 11 Sep 2008 12:30:41 -0400



Begin forwarded message:

From: "Barbara Esbin" <BEsbin () pff org>
Date: September 11, 2008 11:37:21 AM EDT
To: <dave () farber net>
Subject: RE: [IP] NOTE DATE  FCC Moves Closer to Regulating the Internet

Dave:
I have been receiving my IP list messages in digest form, and learned of
this post from some other list recipients who apparently got it last
night.  I am glad to you remembered to mark the 10th anniversary of the
publication of my OPP Working Paper No. 30, "Internet Over Cable:
Defining the Future in Terms of the Past."  I had forgotten to mark the
anniversary myself, but fully agree with your point about remembering
history so that we may learn from it.  I did find the contemporary
write-ups of the Paper in the post below both interesting, from a
historical perspective, and somewhat distressing in their apparent lack
of understanding of the nature and point of my Paper:  First, as the
Working Paper clearly states, the views expressed were my own and "do
not necessarily reflect the views of the Federal Communications
Commission or any of its Commissioners or other staff."  I cannot stress
strongly enough that my Working Paper was not a "trial balloon" sent up
by the FCC concerning its regulatory jurisdiction over the Internet.  In
fact, there was immediate consternation on the part of some at the
highest levels of the FCC that the paper had been inadequately "vetted"
before publication.  I give a "tip of the hat" to both Bob Pepper, Chief
of OPP, for recognizing the value of publishing such work, and for
zealously protecting the ability of Working Paper authors to publish on
controversial topics, and also to Chairman Bill Kennard for his
willingness to let OPP function as the FCC's own "think tank."  My
"Internet Over Cable" Paper was intended to generate discussion about
the important issue of how the agency should approach Internet services
provided over cable networks under its governing statute.  And I believe
that it was a complete success in that regard -- it was both much
discussed at the time and quite controversial.  Second, I note that
under the structure of the Communications Act, "definitional" questions
are the key to answering whether and how the FCC should regulate such
services and accordingly, the definitional questions formed the basis of
my analysis, as they should have.  Third, the Working Paper did not
advocate particular outcomes:  it demonstrated how the cable Internet
service might or might not fit under various definitional categories,
and discussed the regulatory consequences of such classifications,
including the option of treating the Internet access offerings of a
cable operator either as a "cable service" under Title VI or "as a
separate, Internet access or on-line 'information' servic[e], governed
not by Title VI, but subject only to the Commission's ancillary
jurisdiction over 'wire communications' under Title I of the Act."  (p.
89)  This was a recognition of the FCC's "subject matter" as opposed to
"regulatory" jurisdiction over Internet communications under Title I.
(For a more recent analysis that discusses the lack of FCC jurisdiction
to regulate by "adjudication" the network management practices of a
cable Internet service provider, please see my paper entitled, "The Law
is Whatever the Nobles Do; Undue Process at the FCC," at
http://www.pff.org/issues-pubs/pops/2008/pop15.12undueprocess.pdf).
Ultimately, on the question of whether the cable Internet service should
be treated as a "cable service," my 1998 Working Paper stated:  "Whether
the Commission should so classify these services is a policy question
that can only be answered in light of an evaluation that persuasive
policy goals exist in support of concluding such services to be cable
services under the Act." (p. 90)  The Working Paper concluded by
recognizing the difficulty "of the task of sorting out appropriate
regulatory categories in a world in which any carrier can offer any
service over any transmission medium -- wired,  wireless, cable, voice,
data or video.  It is increasingly likely that the above-mentioned
regulatory categories painstakingly established over many years to
further particular policy goals, must necessarily collapse of their own
weight in the digital communications world of tomorrow."  (p. 118) It
closes by observing that the FCC and Congress "may need to develop a new
regulatory paradigm and language that fits the new global communications
medium known as the Internet."  (p. 119) I believe this message still
holds true.  It is ten years later, and we appear to be little further
along the road to updating and rationalizing fundamental aspects of
either the Communications Act or the FCC's approach to "converged"
Internet-protocol based voice, video and data services.  Our domestic
regulatory policy debate continues to be hobbled by the need to conduct
it in the "terms of the past" rather than in accordance with the reality
of the networks and services of today, let alone the needs of tomorrow's
network, service and applications developers and providers.

Barbara Esbin
Senior Fellow & Director of the Center for Communications and
Competition Policy
The Progress & Freedom Foundation

____________________________________________________________________

From: David Farber [mailto:dave () farber net]
Sent: Wednesday, September 10, 2008 6:17 PM
To: ip
Subject: [IP] NOTE DATE FCC Moves Closer to Regulating the Internet




Begin forwarded message:

From: dewayne () warpspeed com (Dewayne Hendricks)
Date: September 10, 2008 7:13:39 AM EDT
To: Dewayne-Net Technology List <xyzzy () warpspeed com>
Subject: [Dewayne-Net] FCC Moves Closer to Regulating the Internet

FCC Moves Closer to Regulating the Internet
<http://www.techlawjournal.com/internet/80908.htm>

(September 8, 1998)  The Federal Communications Commission released a
lengthy report on Thursday, September 4, which suggests that the FCC
ought to regulate Internet access provided by cable operators such as
@Home, Road Runner, Cablevision, and MediaOne.  This is the second
major policy statement by the FCC this year that seeks to expand its
regulatory reach from telecommunications services into computer and
Internet services.

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.

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
tomorrow."

The paper released last week is entitled "Internet Over Cable:
Defining the Future in Terms of the Past: FCC Staff Working Paper on
Regulatory Categories and the Internet."  It was written by Barbara
Esbin, Associate Bureau Chief of the Cable Services Bureau, in
conjunction with FCC's Office of Plans and Policy (OPP).

[snip]

"Internet Over Cable" is 129 pages long.  It can be viewed at the FCC
website in PDF format:
<http://www.fcc.gov/Bureaus/OPP/working_papers/oppwp30.pdf

RSS Feed: <http://www.warpspeed.com/wordpress>




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