Google, Verizon and the F.C.C.

Sometimes if you just wait long enough, everything falls into place.

In terms of the ideas, that is what has happened in the Google/Verizon issue for this set of blogs. Intentionally I wanted to provide background for my opinion: that American society would benefit from strong regulatory presence in this area of “net neutrality.”

In the meantime a couple of important developments have occurred. In two New York Times stories last week evidence for my position emerged: the F.C. C.’s request for more comment and consumer pushback on Google.

The first article is the “F.C.C. Seeks More Input on Wireless Internet Rules:” http://www.nytimes.com/2010/09/02/technology/02fcc.html?emc=eta1 and the second is one of Nick Bilton’s blogs, “Consumer Watchdog Group Goes After Google:” http://bits.blogs.nytimes.com/2010/09/02/consumer-watchdog-group-goes-a….

The F.C.C.’s request for more comment was a smart move. In the midst of reports that Google and Verizon where going around the F.C.C. deliberations on net neutrality, rules regarding pricing for content specifically, it may have been the only move they had, some might argue, especially given the questions regarding their authority in the wake of the F.C.C. v. Comcast decision.

But it was smart because in staking that ground they exercised implied authority. Nebulous if not inchoate at this juncture, that authority reminds corporations that it looms nonetheless. I am not inside the beltway and do not keep up on its gossip, but I suspect it is also a bargain for time. Time to see what, if anything, Congress will do in this arena.

Congress should act.

Against all odds (including popular dismay with the Obama Administration), I advocate for Congress to pass legislation that would provide clear, strong regulatory authority to the F.C.C. to act in matters such as this one, and others in its scope, related to the Internet.

Such legislation will not answer all my prayers. Technical security standards, consumer privacy, and intellectual property issues, to name only three, remain outside the F.C.C.’s scope. Hence my call, two blogs ago, for the pie-in-the-sky notion of a federal regulatory agency devoted to the Internet. But narrowed political fantasies are more realistic. Because regulation is a double-edged sword, I suspect more people across the political spectrum will understand the virtue of granting the F.C.C. authority than would be willing to invest political capital in an entirely new regulatory agency.

There are three main reasons why Congress should pass such legislation. First, it would provide the F.C.C. with the necessary horse-power to act on its broadband deployment plan. Life and law school trained me to think of at least two sides to every argument, but on broadband deployment I cannot find one for the other side. Inaction costs the United States economically, politically and culturally on a global scale. In fact, I am so passionate about this issue that I warmly welcome comments to the contrary. Please educate me about what is not good about this plan, or if you are a free market advocate, why, in the face of a classic “market failure” – i.e. it is too expensive for companies to take on these costs – regulation in the tradition of the New Deal’s Electrification Act does not supply the necessary means to correct the problem.

Second, consumers require the agency to take their interests into account on matters of net neutrality. In the face of our industry darling, Google, turning increasingly corporate, who or what else will speak with meaning for us? More and more people are making the point that users/consumers are NOT Google’s customers. More and more consumer groups (and, if we count Europe, governments) are calling Google to task on everything from privacy through anti-trust to net neutrality. At one time Google did side with consumers. It was in their interest to support net neutrality rules. But the apparent or potential abandonment of that position should teach consumers a valuable lesson: that alignment was a convenience, not a principled position, and so will much else of any corporation’s decisions go in keeping with its for-profit motives, especially when publicly traded and therefore required by law to act in shareholder’s interests. Verizon’s motives have long been obvious. Few would argue that they ever had a patina of consumer interests (well, maybe for ten minutes of good public relations around the R.I.A.A v. Verizon, fast-track D.M.C.A case in 2003). Net/net: we need the federal government to insert the concerns of users in this balance.

Third, the question of the F.C.C.’s authority should not be settled in court or maneuvered by clever lawyers playing a shell game with “Title I” and “Title II” legal categories. Given technological convergence, those titles, telephone or information, are antiquated anyway. It would be a waste of money and an insult to common sense to continue to play that game, and I congratulate the F.C.C. Commissioner, Julius Genachowski, and his team, on not rushing to do so even though pressured by many well-meaning, inside-the-beltway progressive consumer groups. To bring this matter before Congress first is the best approach. If that approach does not prove feasible, then perhaps the courts might act as a last resort. Much education of the meaning of consumer advocacy in the Internet era would be lost in the process, however, if this legal tactic were moved up to the head of the priorities. Moreover, let’s not be naïve. Significant risks must be assumed if courts are asked to make the law that Congress should be making. Many federal judges do not sufficiently understand the Internet as a phenomenon well enough to decide these cases on precedent grounded in administrative law. Politics, of course, also plays a role, yes, even in courts and societies dedicated to a rule of law, but are a step removed from the democratic process of elections by definition.

To advocate for regulation is not to suggest that it is perfect. Nothing involving politics is. But it is to recognize that in an imperfect world of our current form of government, it is the only seat at the table that stands a chance of representing users, consumers and the welfare of the general public. It is therefore critical that we get serious about how and in what ways we want the government to act for us in orienting the culture, law and economics of the Internet that is sustainable, wisely considered and calibrated for public interest.

Net neutrality, because it is about "technology," may seem like a long way away from public policy on social welfare. But anyone who thinks twice about the pervasive penetration of technology into virtually every aspect of our lives -- or at the peril of competitiveness and opportunity if it is not -- can connect the dots. And believe you me, if we don't, corporate interests have and will. Let's get smart, before the going gets even tougher than it is today. We want Congress to grant the requisite authority to the F.C.C. to act in this matter. We also have some hard thinking to do about what else Congress should be doing to integrate the law and politics of the Internet into a fair and progressive body politic. Speaking with clarity on this matter is good start.

So maybe if the F.C.C. just waits long enough, with a little help from its friends in the public domain, everything will fall into place!