Can the FCC Clean Up After Itself?

Harvard Professor Larry Lessig doesn’t hold back a critique of the FCC for getting itself into its present broadband mess.

An April 6 federal appeals court ruling severely undercut the agency’s powers to safeguard our access to a fast, affordable and free-flowing Internet. But the ruling is simply the product at the end of a long line of deregulatory miscues.

During a speech last week in Orlando, Lessig lays blame for this mess at the feet of the Bush-era FCC, which redefined high-speed Internet access with disastrous results.

Yes, policy reversals made under former FCC Chairmen Michael Powell and Kevin Martin have left our nation astonishingly far behind other developed nations. These countries chose not to abandon "open access" broadband rules inspired by the 1996 Communications Act and today deliver a faster, cheaper Internet to more of their citizens.

Yes, the Bush-era FCC gave over too much power to broadband incumbents, which soon moved toward “managing” the Internet in ways that undermined the open and people-powered culture of the Web.

But Lessig reserves his strongest critique for Obama’s FCC – under Chairman Julius Genachowski – which weighed historical evidence in support of open access, and opted to ignore it.

Advice Ignored

The FCC had commissioned Harvard University to research broadband policies for one year. Harvard researchers concluded that open and nondiscriminatory networks foster a faster, cheaper Internet and a more competitive marketplace. All good for consumers. But this finding was unacceptable to phone and cable interests, and the FCC effectively buried the study.

Lessig plays a CSPAN clip, in which a top Genachowski lieutenant, Blair Levin, makes it clear that doing the right thing for the American public isn’t a priority in a town where AT&T and Comcast’s lawyers are still calling the shots. This is unsurprising, considering Levin hired as his top economist someone who has spent the last decade at coin-operated think tanks funded by the telcos.

Lessig devotes the first 26 minutes of his speech to a litany of deregulatory blunders both past and present. It’s a stunning exposé of the destructive power of industry lobbyists, and a defining argument for a return to the open standards that have served other countries so well.

Fixing This Mess

New York Times’ editors underscored Lessig’s point on Sunday when they called on the FCC re-assert its role as a consumer watchdog over 21st century communications:

Rather than seeing an explosion of new competition, the broadband access business has consolidated to the point that many areas of the country have only one provider. Broadband Internet has unbundled into a business with many unrelated information service providers vying for space on the pipelines of a few providers.

The Times concludes that "broadband access is probably the most important communications service of our time," one that demands an FCC that actually works on our behalf.

The good news is that more than 100,000 people agree -- and have taken the time since the court ruling to sign their name to letters urging the FCC to reclassify broadband access as it was originally intended.

If the FCC won’t listen to history, perhaps it will listen to the present and a public demanding that the agency does the right thing.

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