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The FCC and the Move toward Re-Regulation: A Response to Susan Crawford’s “The New Digital Divide”
Susan Crawford’s “The New Digital Divide,” published December 3, 2011 in the New York Times, is an important article that discusses crucial issues about uneven broadband access in the U.S. Crawford identifies a major challenge we face—bridging the broadband digital divide with a weakened regulatory structure and cuts to public spending. This is an important issue because the advent of smart phones can lull us into complacency; it appears that “everyone” has access to the internet. Crawford’s article deftly points out that there are tiers of the internet; the wireline service that is necessary in academic and business contexts and the wireless, which due to its limitations, is primarily an entertainment medium. A few comments on the regulatory context:
Crawford’s mention that the FCC is bringing “basic Internet access” into the Universal Service Fund is an understatement. The FCC is proposing a much larger shift. In both the National Broadband Plan and the Notice of Proposed Rulemaking (PDF), the FCC discusses stopping Universal Service Fund (USF) payments to companies that provide Plain Old Telephone Service (POTS) and shifting federal funds to providers building advanced networks. The purpose of such a move is to foster the upgrade of networks existing in many rural areas, which have substandard phone systems. Indeed, some regions do not yet have digital telephone equipment. In my research, I have found rural people using party lines in the 2000s. Internet access in these areas is often provided through dial-up (an inadequate option), satellite (an expensive option), or line-of-sight wireless, which is not available everywhere. The FCC’s intent by changing the USF rules would be to provide some incentive for companies to expand advanced services into high cost areas, an incentive that Crawford says is absent.
I agree with Crawford that regulation is the solution. Increasing the number of competitors will only occur if the basically unregulated monopolies like Comcast are subjected to more regulation. The FCC commissioners, however, are divided on many questions that would strengthen policy to help the un- and underserved customers Crawford discusses. Crawford’s article does not discuss our complicated regulatory moment. A central part of this story is how the controversies of the net neutrality debate have led the FCC recently (in the last two years or so) to recognize some of the larger issues in ways they previously did not. The Comcast ruling (2010), where the federal appeals court of the D.C. Circuit ruled that the FCC could not regulate traffic over Comcast’s network, made the FCC painfully aware of its limited role in regard to information services like broadband. (The role of the FCC in general is supposed to be shrinking. According to the Telecommunications Act of 1996, the FCC was to fade out of existence as competition took its place as regulator. Since competition has not been the result of deregulation, the FCC has made movements toward a stronger role, one that it has to fight to regain.)
As a part of its renewed interest in stronger regulation, last year the FCC proposed changing the status of broadband providers from an “information service” to a “telecommunications service,” putting them under the FCC’s regulatory purview in the same way as telephone providers (Notice of Inquiry FCC-10-114). This switch would make broadband providers subject to more regulations than they are at present. Needless to say, the broadband industry is not amused. Indeed, some of the FCC commissioners adamantly objected to deliberation about whether broadband should be reclassified as a “telecommunications service.”
The end of Crawford’s article mentions broadband programs in other countries that we can look to for models, many of which are requiring providers to allow competitors access to their networks. In the U.S., the big players lobby fiercely against this and, as I pointed out earlier, the court blocked the FCC from mandating this type of competition, saying the FCC did not have this authority. One way to get around the Comcast ruling is for the FCC to change the broadband providers’ status to “telecommunications service,” but again this is extremely contentious.
At this point, it seems necessary for the FCC and Congress to concede that the decision made in the 1960s to separate “data” and “voice” and leave the former unregulated does not meet our current broadband needs. In addition to stronger regulation, political will is needed for a broader shift to elevate citizens’ public interest over that of corporations once again.
The New York Times’ “Week in Review” Sunday also contained an interesting news analysis article about the decline of the postal system, the nation’s first information network. The article asks whether we need government-owned postal service and suggests the post office may no longer be relevant in our digitally connected world. It seems, however, that we need to think carefully and seriously about yet another call for the privatization of a network that currently serves all Americans equally. When readers turn the page in the “Week in Review,” they arrive at the second part of Crawford’s piece, which shows us the negative results of deregulation.