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Net Neutrality: Riding a Regulatory Tiger

By 11 February 2010 No Comment

Chairman Genachowski “gets a little peeved when people suggests that he wants to regulate the Internet.” [Genachowski shouldn't be too surprised at this suggestion; in Nov '08, the WSJ reported that "Federal regulators are considering whether the government should take greater control of the Internet..."].

“I don’t see any circumstances where we’d take steps to regulate the Internet itself,” Genachowski said Tuesday, during a meeting with Wall Street Journal reporters and editors. “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

That may be the case, but when pressed, he admitted he was referring to regulating Internet content rather than regulating Internet lines.

You know what? I believe him.  But that doesn’t really help.   The indispensable Berin Szoka and Adam Thierer explain why…

If the Chairman is “peeved” at the suggestion that the FCC might be angling to extend its reach to include the Internet and new media platforms and content, perhaps he should start taking a closer look at what his own agency is doing—and think about the precedents he’s setting for future Chairmen who might not share his professed commitment not to regulate the ‘net.

Read their entire post for a litany of reasons why the FCC is likely to go much further (regulatory creep), why net neutrality proponents are likely to go much further (their goals are not platform specific), why current FCC inquiries already point the way towards further regulation of the internet and why the internet does not necessarily lend itself to such clear distinctions in the first place.

This isn’t a matter of Chairman Genachowski’s good intentions.  Good intentions pave roads, especially when Chairmen, technology and interest groups change.  As a judge in the current Comcast V FCC case has pointed out, the FCC already appears to be claiming for itself “an unbridled, roving commission to go about doing good.”  That’s unlikely to slow down with groups like Public Knowledge urging [PDF] the FCC to reclassify broadband under Title II in order to “expand the range of opportunities for more aggressive regulatory steps…”  Indeed, we’re already seeing the ‘wait, these net neutrality rules might not be unicorns and rainbows we ordered!’ from net neutrality supporters who are, apparently, shocked to discover that you can’t just jump off a regulatory tiger anytime you like.

Ultimately, though, the definition of “the internet” is so malleable that it is difficult to see how regulatory creep can be stopped.  Chairman Genachowski thinks it’s the content.  But the two men regarded as the “Fathers of the Internet” – Vint Cerf and Robert Kahn – defined “Internet” in a way that would seem to create a definitional conflict for regulators…


The authors feel strongly that efforts should be made at top policy levels to define the Internet. It is tempting to view it merely as a collection of networks and computers. However, as indicated earlier, the authors designed the Internet as an architecture that provided for both communications capabilities and information services. Governments are passing legislation pertaining to the Internet without ever specifying to what the law applies and to what it does not apply. In U.S. telecommunications law, distinctions are made between cable, satellite broadcast and common carrier services. These and many other distinctions all blur in the backdrop of the Internet. Should broadcast stations be viewed as Internet Service Providers when their programming is made available in the Internet environment? Is use of cellular telephones considered part of the Internet and if so under what conditions? This area is badly in need of clarification.

The authors believe the best definition currently in existence is that approved by the Federal Networking Council in 1995, http://www.fnc.gov and which is reproduced in the footnote below [xv] for ready reference. Of particular note is that it defines the Internet as a global information system, and included in the definition, is not only the underlying communications technology, but also higher-level protocols and end-user applications, the associated data structures and the means by which the information may be processed, manifested, or otherwise used.  In many ways, this definition supports the characterization of the Internet as an “information superhighway.” Like the federal highway system, whose underpinnings include not only concrete lanes and on/off ramps, but also a supporting infrastructure both physical and informational, including signs, maps, regulations, and such related services and products as filling stations and gasoline, the Internet has its own layers of ingress and egress, and its own multi-tiered levels of service.

The FNC definition makes it clear that the Internet is a dynamic organism that can be looked at in myriad ways. It is a framework for numerous services and a medium for creativity and innovation. Most importantly, it can be expected to evolve.

Well, the network won’t be evolving a whole lot more if it’s frozen in place.  But if the “Internet” also includes the network technology, protocols, applications, and the means by which they are processed….it’s hard to see why regulators, stakeholders (and interest groups with their own “roving commission to go about doing good”) will restrain themselves to only one layer of the internet.

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