I’ve stated that there is nothing coherent about the broadband reclassification movement before Chairman Genachowski proposed his “third way”, and I haven’t seen anything that would make me reconsider my assessment.  The Open Internet Coalition (OIC) which has been lobbying hard for reclassification seems to have gotten their wish from the FCC chairman, but neither has offered a good explanation of what such a legally risky maneuver can actually accomplish even if it is successful.

Since we have been repeatedly told by proponents of reclassification that the FCC proposal doesn’t regulate the Internet, it was telling that the OIC repeatedly dodged the question from Scott M. Fulton as to what part of the Internet would Title II reclassification apply to.  Asked a third time, Amazon’s Paul Misener dodged the question.

“This whole conversation is about the Commission’s legal authority, not the ultimate rules,” Amazon’s Misener finally responded. “So when we get to the point of actually debating, discussing how to approach consumer protections via net neutrality, I really hope we can engage the network operators more directly in a way that becomes collaborative. This is a lot of discussion about the legal authority, and certainly the Comcast decision puts the issue of legal authority squarely before the Commission. So Chairman [Julius] Genachowski had to address it, and he’s addressed it in a great way, we think. But now let’s get on with the business of coming to reasonable rules.”

So when asked about regulating the Internet, Misener basically wants Mr. Fulton to change the subject to debating Net Neutrality rules.  Now I actually commended Mr. Misener on Amazon’s proposed Net Neutrality rules as a step in the right direction that could use some improvement, but this is dodging a very important question.

I’ve pointed out that OIC executive director Markham Erikson has stated that they don’t actually want to go back to the entire old Title II framework with regulated wholesale prices (“structural separation” or “open access”)  for broadband service, but this clearly goes against the wishes of some key members of the OIC.  Free Press and Public Knowledge screamed for a return to structural separation, and Harold Feld of Public Knowledge even stated that it doesn’t even matter if ISPs censored content so long as there was intramodal competition with structural separation.

Free Press and Public Knowledge haven’t been too vocal in their criticisms of Genachowski’s “third way” which mirrors the confusion of the OIC proposal, but they see reclassification-lite as a stepping stone to return to structural separation.  The problem is that we’re stuck with a proposal that makes absolutely no sense and the hard questions are being ignored.

EarthLink rent seeking and exemptions

EarthLink is another member of the OIC that would absolutely love to see a return to the old policy of structural separation and they objected bitterly to the Brand X ruling that solidified the FCC’s declassification of Title II authority over broadband.  Earthlink wants to go back to the old system where facility based broadband providers were forced to sell wholesale access to Earthlink at government regulated prices.  This is a classic example of rent seeking where a private company lobbies a regulator to force their suppliers into selling at a lower price.

The problem for EarthLink is that the OIC and the FCC left structural separation off the reclassification agenda.  The bigger problem for EarthLink which is the fact that they themselves are a broadband provider and it’s unclear how they would exempt themselves from the rules.  The FCC seems to have found a clever way to split hairs by declaring that the rules only apply to “broadband transmission”.  Marguerite Reardon’s FAQ on broadband reclassification even explicitly exempts EarthLink.

So EarthLink is exempt because they don’t own the broadband transmission infrastructure?  What happens if EarthLink blocked or unjustly degraded Vonage VoIP service and BitTorrent P2P access?  They’re exempt right?

Exactly what parts of the Internet are regulated?

Markham Erikson of the OIC never answered my question on how they expected the old Title II framework to apply to content or application blocking when Title II only applied to the physical transmission network.  Under the old framework, facility operators like AT&T were effectively two companies.  The division that controlled the physical transmission network which included the physical wiring and ATM switching network was classified as Title II.  This part of the network has no technical means of controlling Internet Protocol (IP) much less the applications and content.  The division that controlled the IP layer and everything above it (application protocols and the content) was classified as Title I.  The IP layer and the layers above it is the part of the Internet that is capable of potential mischief e.g., VoIP or BitTorrent P2P blocking.

If Title II now intends to regulate this potential mischief, which is the whole stated purpose of Title II reclassification, it would have to expand well beyond the old Title II framework.  Yet the FCC and the OIC insist that the “third way” doesn’t expand Title II regulation or any kind of regulation onto the Internet, but they insist that it can solve the hypothetical problem of application or content blocking which makes no sense.