FedSoc LiveBlog: Telecommunications: Broadband Policy — One Year In

November 14th, 2009

Telecommunications: Broadband Policy — One Year In
10:45 a.m. – 12:15 p.m.
East Room

  • Prof. Marvin Ammori, University of Nebraska-Lincoln College of Law
  • Hon. Robert M. McDowell, Commissioner, Federal Communications Commission
  • Hon. David M. McIntosh, Partner, Mayer Brown Row & Maw, LLP
  • Hon. Kyle E. McSlarrow, President & CEO, National Cable & Telecommunications Association
  • Prof. Gigi B. Sohn, President and Founder, Public Knowledge
  • Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

Commissioner McDowell – Introductory Remarks

  • This year may be busiest year for FCC ever
  • In addition to normal duties, stimulus act requires national broadband plan by Feb. 17
  • Every aspect of society is affected by the Internet
  • Only been privatized 15 years ago, developing very quickly
  • Our economy is dependant upon it
  • Broadband ubiquity could cost 20 Billion – 350 Billion
  • Questions:

–       How can the gov’t provide incentives for private sector investment to achieve this goal?

–       Is the Internet broken?  If so, should the gov’t fix it?

–       How has factual landscape changed in recent years?

–       Are non-state controlled orgs able to resolve network management problems?

–       Can FCC resolve the technical difficulties?

–       Will US regulations2 spark international retaliation?

–       Will gov’t intervention spark abuse?

–       Does the FCC have statutory authority to regulate the Internet?

–       What affects will regulation have on the current ecosystem (infrastructure, current investments?

  • Remember, regulations on corporations are subject to first-amendment analysis as well.  This includes the corporations’ right to free speech.
  • 5th amendment issues – depriving corporations’ use of property.
  • Let’s hope that what is not broken does not end up broken.
  • Let’s hope tat competition is inspired by whatever regulation that is established.

More after the jump.


  • Imagine 2 worlds – one involving the current use of the Internet and one where every act a user does is controlled by service providers.  The latter is the one described by promoters of “net neutrality” legislation, but it does not exist.  If there is no problem, what needs to be fixed?


  • I will argue why conservatives should support net neutrality.
  • Net neutrality is not about regulating the Internet, it is about regulating the “on-ramps” (ISPs) to ensure they don’t pick winners and losers.
  • Prior to 2005, the on-ramps were required to be non-discriminatory.
  • Arguments
    • Neutrality promotes individual freedom, does not allow big corporations to bribe ISPs
    • Providing competition.  Each ISP has a termination monopoly.
    • Good for economic growth.  Google, Skype, Yahoo – all profited from open Internet.  Profits ISPs too.  (Then why wouldn’t they keep it open?)
    • Answering Comissioner’s questions
      • Regulatory certainty – nobody knows whether blocking is allowed.
      • Statutory authority – with regard to ancillary jurisdiction, we are allowing ISPs to affect other streams of communication.  This is ripe for regulation.


  • The rationale for not providing 5th amendment protections is scarcity.
  • Analogous to 90s, congress requiring telecoms to allow upstarts to use their infrastructure
  • If unregulated, each side has to negotiate.  Public choice theory tells us the individuals subject to regulation will invest in lobbying instead of spending money on their business.  A lot of business likes certain regulations; they create practical monopolies, even if unintentionally.


  • Dial-up allowed people to dial-up any ISP – true competition in access to Internet.
  • With broadband, 2/3 choices at most.  Competition is much smaller.
  • What would happen without network neutrality?  The Internet would look much more like Apple’s iPhone App store.
  • The Internet’s history has been innovation without permission
  • ATT has not developed technologies in fear of it wrecking their current infrastructure.

McSlarrow response

  • The ISPs were unregulated, despite choice in access to them
  • Cable modem services have never been regulated

Moderator Question:  Statutory Authority?

Ammori:  FCC has either ancillary authority or direct statutory authority.  Supreme Court seems to imply that congress intended FCC to have broad discretion and authority.

Sohn:  Pending legislation is not relevant to FCC authority.

McSlarrow:  I agree that it is likely net neutrality legislation will not pass.  Comcast decision and vote will coincide with coincidental timing.