Tuesday, April 05, 2011

Defining the Public Interest: The Communications Act of 1934 and Its Effect on the Net Neutrality Debate...

Some final summary notes on a paper I will be presenting at a conference at Hofstra University this Friday...

Much of the debate over Net Neutrality today is centered on principles established all the way back in 1934. The landmark Communications Act, designed to regulate the allocation of radio frequencies, is currently being used to determine how to regulate (or not regulate) the wireless internet spectrum as well.

The Communications Act of 1934 established that use of the wireless spectrum would be determined based on who could best serve "the public interest, convenience, or necessity". The FRC (soon-to-be the FCC) interpreted that phrase by defining the "public interest" as anything that would bring about "the best possible broadcasting reception conditions". This was an engineering interpretation made principally by engineers. The consequence of defining the "public interest" in these terms was that only the most highly capitalized parties - namely large corporations - were granted broadcasting licenses because only they could acquire and regularly maintain the best technical equipment.

Fast forward to today and the Net Neutrality debate. The issue of whether or not to enforce Net Neutrality rules regulating the wireless spectrum is again being decided based on engineering priciples - specifically those favoring technical efficiency - at the expense of, critics argue, political values.

Central to the Net Neutrality debate is whether to classify ISPs as "common carriers" or "information service providers". This vital regulatory distinction also finds its origins in the Communications Act of 1934. If the FCC decides to classify ISPs as common carriers, then that opens the door to greater regulatory authority and the ability to enforce Net Neutrality rules. On the other hand, if ISPs remain classified only as information service providers, and not common carriers, then the FCC will remain more limited in its regulatory capabilities and Net Neutrality regulations will become far less likely.

The cheat sheet... Classifying as "common carriers" = Yes Net Neutrality; Classifying as "information service providers" = No Net Neutrality.

It's this classification which is paramount, and it has yet to be fully determined. What's at stake is nothing less than a complete reformulation of what the Internet itself will look like, and how it will evolve, in coming decades.

The architecture of the Internet both enables and constrains certain forms of political behavior, and therefore that architecture and the policies which sustain it must be viewed as inherently political. When the Net Neutrality debate is framed in the path dependent context of telecom regulation that began in 1934, history proves a useful guide in predicting the consequences. When private interests conflate the distinction between what are technical engineering decisions versus those that are inherently political, what results is a system dominated by large corporate firms with the highest levels of capitalization. This was the systemic path which began in 1934. Only time will tell if history is bound to repeat itself.


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