isen.blog

If "the fix is in on VoIP" as Reed Hundt claims, and consistent with Tom Power's first hand observations, then maybe we can discern the nature of the fix from FCC Chairman Powell's remarks on VoIP to the FCC's Technology Advisory Council on October 20. This transcript is my own, and I've taken a few liberties. However, one, you can hear the original remarks here. Here's what I get from Powell's remarks:

(a) Powell believes that VoIP is very different from telephony-classic.
(b) Powell wants the FCC to frame the VoIP debate.
(c) Powell wants to regulate from a blank slate, not from the tangle of existing legacy regs.
(d) The exceptions to the above include law enforcement, antitrust, and Americans with disabilities (but -- tellingly? -- Powell does not mention schools, rural customers, or the interface between the telephone network and the Internet).
(e) Powell believes in minimal regulation of the Internet because of its pre-regulatory success and because it is still rapidly evolving.

There's not many clues here here about *where* Powell would draw the line between "telephony" and the Internet, between the old and the new, and the devil we don't know is in the details we don't know.

3:17:45

Communications policy is about to be, if it isn't already, at a crossroads.

[The FCC is facing a] very very important set of decisions to be made about how we embrace Internet-based communications, whether we will tailor a set of regulatory clothing uniquely for [the Internet] or whether we'll make [the Internet] wear Ma Bell's hand-me-downs. By the way, this is not an arguement for deregulation or regulation. I find that to be an extremely tired way to embrace these questions . . .

[The question is, are we] going to regulate uniquely and specifically for the nature of this medium and its unique characteristics and its unbelievable potential and its premium on innovation and lower barriers to entry and other kinds of exciting things that make it not a telephone? I think that winning a public debate about [Voice over IP] being not just a telephone, or an incremental change on the way we have looked at the telephone system for 100 years is a very, very important [property of these] crossroads.


The micro-judgements as to what regulatory policy then befall are easier once you create national consensus that this thing is different -- it is different from a historical perspective, it is different from a technological perspective, and it is deserving of a singularly unique policy examination. As opposed to the risk I see right now, which is regulating by accident. What's happening now is that [VOIP] is slowly being regulated by accident as we stumble through these innovations. Now the market is moving faster, innovations are moving faster, entrepreneurs are moving faster than any regulator is moving to keep up.

I know what regulators do. I am one of them. We are conservative. We will fall back to what we know when we fear being run by something we don't understand. So the first thing is to truly commit to understanding. To understand the technology, the market and the way in which it is unfolding, so we don't approach it with fear but with excitement and optimism that this is inherently a good thing for the world, a good thing for the country, a major breakthrough in telecommunications, and a great new opportunity and promise. We shoudn't be afraid of that. I personally believe we should be embracing it.
. . .

Some housekeeping matters: I've decided that the Commission is now going to start inserting itself in this area much more directly. That's not to say regulating it, only to put a marker down that it is time, time to start regulating these policy questions in forums that matter.

I don't want 51 states to trip into what Voice over IP is, I really don't.

If we don't move quickly to at least show that we're focused, if we don't have a state jurisdiction do it we'll have a court do it. I can honestly debate what the answers are, but I think there's a danger if you don't have the right institutional player in the right place. I don't think the ninth circuit has any idea what Internet is, I don't think it has any idea what broadband is, and I don't think it is the right place for that question to be decided no matter what the actual answer is. If you're not going to have an institution that is capable of dynamism and flexibility, as it goes through trying to learn this, we're going to have a problem.

The role of regulation depends. It depends on the time, the nature of the problems, and the nature of the consequences. And because it depends, the worst thing we could do is to regulate it like a telephone, to regulate it by accident for no other reason that that's what we know and that's what we understand. I think there are a lot of quarters in the federal government and in state governments that are poised to do just that.

[On the other hand, there's] the almost equally ideologically absurd libertarian, "Who cares?" We do care because we care about law enforcement capabilities, we care about the disabled, we care about anticompetitive behavior.

I think that the greatest error [being made today] is that if you believe that the internet being free, and minimally regulated or unregulated means that you don't care one whit about these other policy things. I think that's wrong.

All I care about is that I want to build from a blank slate up, as opposed to from the from the myriad of telecommunications regulations down. We might agree we want to be in the same place. But it is a nasty and tangled litigious exercise to start from the phone company world of regulation and work your way down than to try to say, "No, this is something new. Let's make each regulatory judgement as a consequence of forethought and judgement and understanding about this specific technology."

The statute makes that cumbersome . . . I would submit that 80% of the questions that face me today are gray. There is no clear answer in the statute. The statute is in its little buckets. The buckets don't make sense. Why is the FCC in the midst of controversy all the time? Because it is always forced to negotiate a course through an ambiguous statute premised on yesterday's technology and apply it to something that is emerging and changing the world.

We'll keep doing that. But that's going to crumble. The act is going to crumble under relevance, even under its own weight and under the pressures of technology. And one day, whether we like it or not, Congress is going to have to come back to this unless it sanctions a set of odd and absurd contradictions that start to unfold in the law.

So our goal (the TAC and the Commission) is to shape an intelligent debate, to make sure that long before Congress starts getting involved that we win in the public mind the understanding of what that issue is, and we make these things more thoughtful and minimal.

I belive in minimal regulation only because I believe that there's a futility principle. I think that our institution, and state regulatory institutions, are not built particularly well for fast-changing dynamic technology-driven innovations. We're really good with matured industries that have stabilized to [a few fixed] regulatory choke points. We're really on dangerous regulatory turf when we're regulating change. You don't get a rule making out of the FCC in less than a year or six months, and in Internet time that can be forever, so making sure we focus on those handful of core regulatory values, and having the courage to shed the rest, seems to be the billion dollar question. There will be core regulatory values to protect, but we will need to judge what those values are, commit to them, focus on them, and be confident and courageous enough to say it, and to hell with the rest of this stuff. And if time goes by and some of the rest of the stuff is needed, we'll bring it back. I'm amazed by the thought that there's one window for things and that you'll never be able to fix it again. I don't know what world that comes from. I've watched 100 years of telecom regulation constantly change, evolve, ebb and flow, back and forth, push and shove, as concerns [compete].

So what's the role of regulation? [For one thing] I think you should justify what it is beyond general anti-trust principles . . . but on this revolution, I think the burden's on the government. I think for this revolution, when the Internet has already prospered so nicely without a lot of government hand-holding, where IP protocol, and voice over IP and powerline infrastructure and other things that are interesting [have begun] to prosper without our help, we should own the burden of presumption about why we are needed here. And when we can satisfy that, we should act on that clearly and swiftly. But when we can't we should stay the daylights away from it lest we interfere with a healthy, robust innovative market.

3:26:30