Podcast: Dave Farber on Title II ISP Regulation

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Dave Farber <dave () farber net>
> Date: May 17, 2017 at 5:13:49 PM EDT
> To: Ip Ip <ip () v2 listbox com>
> Subject: Podcast: Dave Farber on Title II ISP Regulation
>
>
> ---------- Forwarded message ---------
> From: Richard Bennett <richard () bennett com>
> Date: Wed, May 17, 2017 at 2:23 PM
> Subject: Podcast: Dave Farber on Title II ISP Regulation
> To: Dave Farber <dave () farber net>
>
>
> Here’s your podcast on Title II, the FCC, and the Internet. I think it went extremely well, lots of people need to 
> hear it. 
>
> Thanks again.
>
>
> 00:00
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> Podcast: Play in new window | Download (Duration: 36:56 — 18.0MB) | Embed
>
>
> In this podcast, Dave Farber (the Grandfather of the Internet) joins us for a discussion of the FCC’s efforts to 
> protect the Internet from abuse while maintaining its openness to innovation. The issue is net neutrality and the 
> legal cudgel that enforces it in the US, Title II of the Communications Act.
>
> On Thursday, May 18th the Federal Communications Commission will vote on its third attempt at crafting net neutrality 
> regulations that keep the Internet free and open without strangling innovation, drying up investment, or making cable 
> TV comedians unhappy. This is harder than it should be.
>
> The Commission’s first attempt to impose net neutrality – an enforcement action against Comcast in 2008 – was struck 
> down by the courts because it was not preceded by a rulemaking. The DC Circuit wisely declared that federal agencies 
> can’t expect firms to abide by rules before the rules are made.
> The first attempt at rulemaking produced the 2010 Open Internet Order, which was also vacated by the DC Circuit 
> because it was poorly reasoned. The court gave the FCC two options: it could follow the logic of the Cellco Data 
> Roaming order, allowing individualized bargaining, or it could adopt Title II common carrier regulations.
> The current regulations took the common carrier option and passed muster with the courts. Unfortunately, the agency’s 
> decision to abandon sound policy in order to avert another embarrassment in the courts has attracted a lot of 
> criticism for its potential to harm network innovation.
> The new regulations aren’t final, but freeing ISPs from Title II appears to be a major objective. The 2015 order also 
> contains a very troublesome “general conduct rule” that takes us back to the Comcast scenario: the order contemplates 
> enforcement actions that violate unwritten rules. The courts have yet to rule on this matter, but it’s on shaky 
> ground.
> The FCC’s Former Chief Technologist Speaks
>
> Dave Farber was the FCC Chief Technologist from 2000 – 2001, when the agency was led by Chairman Bill Kennard. Along 
> with Chief Economist Gerry Faulhaber, Farber enabled the agency to reach its pro-innovation zenith. He discusses his 
> efforts to raise the FCC’s Internet game and offers some surprising insights about the FCC’s reasoning on the 
> AOL/Time Warner merger.
>
> Farber regards privacy as a critical problem for the Internet, consistent with his long-time stance as a co-founder 
> of the Electronic Frontier Foundation. He observes that the FTC is better equipped to handle privacy than the FCC 
> because of competence and jurisdictional reach. He finds fault with the Title II action because it protects ISPs from 
> FTC oversight.
>
> Farber’s primary concern is the effect of Title II on innovation. Title II is a product of a low-innovation era, 
> 1934, when everything new was regarded with suspicion. Some telecom policy warriors still live in that bubble.
>
> Scared by the New
>
> Telecom regulators need to distinguish innovation from anti-competitive practices. Farber reminds us that there are 
> exactly zero examples of anti-competitive ISP practices resolved by FCC enforcement. The court of public opinion is 
> much more powerful than a mere regulator.
>
> We both find it remarkable that Title II advocates wish to keep the Internet the way it is. The desire to maintain 
> the status quo did not get us from the telephone network to the Internet.
>
> The Internet has too many shortcomings and issues for us to be slamming the door on innovation. The real innovator’s 
> dilemma is the public’s fear of the new, which is on display in the John Oliver-inspired protest movement.
>
> The FCC was designed as an independent agency because the public is always biased in favor of the status quo. As 
> Henry Ford may have said about his Model T, the public just wanted faster horses because they were scared of cars.
>
> Some things never change.
>
>  
> —
> Richard Bennett
> Founder/Publisher, High Tech Forum
>  
> Consultant



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