Susan Crawford has once again hit the nail on the head in a NYT Op-Ed regarding the F.C.C. case that came down from a D.C. Appellate Court this week. The Court found against the F.C.C., not so much on the merits of the case, which involves the bewitching issue of “net neutrality,” but, once again, on the authority of the F.C.C. to make decisions in this legally complicated area.
I need not detail Crawford’s analysis here. Suffice it to say, the F.C.C. used clever turns of phase regarding the definitions of “common carrier,” “communications,” and “information services” in laws promulgated before the public Internet was born as shortcuts to achieve ends that made sense more than ten years ago, but have come back to haunt the F.C.C. now as it attempts to regulate an area it avoided by definition in the past. In the immediate, Crawford has it right that to fix the present problem, decade old decisions should be reversed.
The more obvious, and deeper, problem remains, however. A legal paradigm established for technologies and forms of communication once dominant, such as telecommunications, radio and broadcast televisions now superseded by data networking and the Internet, require – no surprise – a new legal paradigm. These legal squabbles are all about shoehorning the public policy needs of the Internet into the old definition and rules. In the beltway microcosm, I interpret the F.C.C.’s position as mostly on the side of the angels. But I am not unaware of the reasoning behind the telecommunication companies’ resistance. Not only do they not want to be beholden to what could be interpreted as arbitrary and capricious turns of legal phrases by the F.C.C., but they also want freedom in working the technology into profitable business models. But from a macro, outside the beltway view, this is no way to address serious and impactful public policy needs.
At this point, public policy has reached the saturation point of being served by this legal shell game. The old paradigm will simply not allow for the appropriate balance of public and corporate interests to be played out without entanglement over these increasingly arcane issues of the definition of an information or communication service. It is time for a new paradigm of communication law. That change requires a functioning and sensible Congress. Administrative law can accomplish only so much with existing law; whole new paradigms of law are the province of the legislature.
That requirement not being in evidence is why I support Crawford fully in her suggestion that the F.C.C. reverse its earlier decisions in order to address contemporary challenges of its authority. By the same token, communication law may be added to the growing list of laws in need of major overhauls, such as copyright, network security, electronic surveillance, encryption and export control laws. This laundry list is already greater than the sum of its parts. A nation that prefers to expend time, money and public trust fighting over definitions just to get simple jobs done is a country whose public policy priorities are out of whack. Neither telecommunication companies nor the public is properly served. U.S. global competitiveness and domestic economic, social, political and cultural needs hang in the balance. Once again, higher education can play a salutary role. It is the best sector of society to inform the public about what is at stake. Our specialists should educate the public about options and facilitate a debate. Academics should help, but make no mistake: It is not an academic matter.
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