Last Tuesday, the Open Internet Coalition (OIC) and its executive director Markham Erikson came out on a full press court to push for Title II reclassification of ISPs due to the supposed loss of FCC Title I jurisdiction over Internet Service Providers (ISPs) because of the DC Circuit ruling against the FCC.  In an media conference earlier last week, Erikson stated:

“I actually think that the Comcast decision, in many ways, was a blessing,” he continued, “in that it’s really saying that the Commission needs to jettison the amorphous concept of ancillary authority, because it’s not clear exactly how far that extends into the Internet. If it refocuses on just the last-mile facilities of the Internet access provider, they would be on solid legal foundation.”

But I pointed out how the hysteria over the DC Circuit was unjustified and that Title II reclassification was irrelevant to Comcast’s case in the first place and I spoke to Scott M. Fulton of Betanews by phone regarding these issues.  Fulton in turn posed some of these questions to Erikson last Friday and Erikson softened his position on Title I jurisdiction and stated:

“I think George is right with point #1, that the DC Circuit didn’t obliterate the concept of ancillary authority; that legal theory still exists. The court just further described what they think ancillary authority means. It means that anything you’re doing under Title I has to be tied to a specific statutory mandate under Titles II, III, or VI of the Communications Act”

While I thank Mr. Erikson for at least conceding the fact that there is no catastrophic loss of all FCC ancillary jurisdiction under Title I (an idea pushed hard last week by many groups pushing for Title II reclassification), I am very disturbed by Mr. Erikson accusations that I am misleading the public.  Erikson stated:

“However, George is wrong on his second point, and that is, if you do move to reclassification, certainly the FCC would have the legal authority to draft regulations that would govern exactly the kind of behavior Comcast was engaging in. This is where George and others sometimes mistakenly create a straw man, intentionally or unintentionally.”

I dispute that so let us examine the facts and see who is mistaken.  Erikson goes on to make his case by saying:

“If the 2002 cable modem order — which began the process of calling Internet access services “information services” rather than telecommunications services — are revisited or reversed or modified in some way, it doesn’t mean you have to go back to the old-style regulatory approach that governed telecommunications services for so many decades. That’s a straw man, I think, that network operators and advocates on the other side like to use, and you hear the talking points that advocates on our side would like to return to old-style telephone regulations, burdensome regulations that would involve things like requiring tariffing, and wholesale provisioning of capacity for competing ISPs, and other things. It’s indeed not an either/or in that situation.  Title II certainly gives, particularly under Sections 201 and 202, a model for dealing with the facilities-based access providers, for dealing with the Transport layer, and governing how the Transport layer deals with the content that flows over the Transport layer.“

Well this is really interesting!  First of all, what Erikson is describing here doesn’t sound like “reclassification” at all since he’s describing an entirely new framework that almost works completely different from the old Title II frame.  In fact he says that the OIC is not asking for a return to the old Title II regulatory frame work and that it is a “straw man” argument to claim that they are.

But “Net Neutrality” advocates have been clamoring about the loss of Title II classification in 2005 for the last 4 years and they desperately want to go back to “Open Access” (AKA “structural separation”) which involves the old tariffing and wholesale provisioning of capacity to competing ISPs that Erikson opposes.  By contrast, Harold Feld of Public Knowledge which is an ally of the OIC and a fellow advocate of Title II reclassification clearly states that the primary goal is to get back to an “open access” framework so that we don’t even need to worry about ISP censorship or blocking because consumers can simply change ISPs.  Feld states:

“So while the DSL was regulated, the separate ISP was merely “subject to Title I” and the FCC “forbore” from regulating it. Because it actually regulated the underlying DSL transmission as a Title II telecom service.

Before 2002, ISPs engaged in things like server-side filtering and advertised themselves as doing such. There were Christian ISPs, “kosher” ISPs, and other ISPs offering to filter out content the subscriber found offensive. This did not cause much angina on the part of those of us lobbying for open access (as the fight was known back then) because the market also supported many plain vanilla connections for those who wanted access to raw transport.”

So Mr. Erikson, are you suggesting your friends at Public Knowledge are  undermining your cause by bringing up a “straw man” argument?  It would seem to me that Public Knowledge is more in line with what I have perceived to be the “Net Neutrality” movement.  Are you now stating definitively that the Open Internet Coalition is officially opposed to the old “Open Access” and “Structural Separation” requirements and that you only care about preventing ISP application/content blocking?  This would seem to put your organization’s goals at odds with Public Knowledge’s goals for Title II reclassification.

Furthermore, Harold Feld contradicts your position that you can “govern” the content “that flows over the transport layer”.  The pre-2005 wireline rules put the transmission (not transport) layer under Title II which couldn’t do anything about those “kosher” ISPs since content filtering happens at the layers above the transmission layer.  If fact it’s technically impossible to filter applications or content at the transmission layer so it seems like you are “intentionally or unintentionally” (your words) misrepresenting the effectiveness of Title II classification over the transmission layer.  But as an officer of the OIC, your word carries a lot of weight with the media even if you are mistaken on the technical issues so I hope you will at least acknowledge this error.

Let’s continue examining your following statements to Betanews:

“So I think I would strongly disagree with George’s statement that, if you reclassify, you would have to go back to things that were done prior to the reclassification of these services from telecom, to information services. If you go back to classifying them as telecom services, it doesn’t mean you have to create all those old-style telephone regulations again. It’s just not the case.”

Alright Mr. Erikson, I will concede the possibility that I may have lumped you in with all the other “Structural Separation” advocates in the Net Neutrality movement such as Public Knowledge, the Berkman Center, and Susan Crawford.  However, I hope you will at least acknowledge your confusion on governing content on the transmission layer and that you would clarify your position with respect to all the “Structural Separation” advocates in the Net Neutrality camp.  You reiterate here that you are not advocating old style “reclassification” which you previously defined as tariffing and wholesale provisioning to competing ISPs.  You are advocating something entirely new and different form of Title II that avoids old style “Structural Separation” requirements, but you want new powers to regulate content or application blocking which can only happen above the transmission layer but the transmission layer doesn’t offer that capability.

In other words, you want the exact opposite of what your Net Neutrality allies at Public Knowledge and Free Press want.  They want a return to Structural Separation which you don’t want, but you want content/application regulation which they don’t want so this is a very interesting development.

Do you really want Title II Mr. Erikson?

Something is still lost on me and perhaps you can explain this Mr. Erikson.  You yourself admitted that the FCC still has ancillary powers over ISPs like Comcast yet you insist that you need Title II reclassification, but without the old “Open Access” or “Structural Separation” framework that your “Net Neutrality” allies want.  Furthermore, you want Title II regulations to apply above the transmission layer such that it will govern content which is is impossible.  This is baffling to me because you seem to be asking for a hamburger without the bun or the meat, but you want a soft taco shell around it.  If that’s the case, why not just ask for the taco?

Aside from this, I hope you can drop the “straw man” argument because it’s clear that most of your Net Neutrality allies are calling for old style Title II.  Furthermore, your call for Title II doesn’t really make a lot of sense because you don’t want what Title II actually entails and what you want can’t really be given to you by the old Title II framework.  Furthermore, going back to Title II would mean a legal quagmire that requires the FCC to reverse its own previous positions before the court while looking like they’re trying to make an end-run around the DC Circuit court of appeals.

Lastly, if you are really asking for Title II classification above the transmission layer, this would mean that companies like Google would fall under Title II section 251 “Reciprocal Compensation”.  In layman terms, that means Google would actually owe money to the broadband providers since they send a massive amount of traffic to the ISPs most of which is unreciprocated users rarely upload to Google.  That might be music in the ears of Verizon, Comcast, AT&T, and all the other ISPs and they might have just had a change of heart about this new type of Title II classification you are proposing Mr. Erikson, but good luck explaining that to your members like Google.