Why U.S. Tech Policy Needs Silicon Valley's Input

I just spent a year in D.C. working on tech policy as part of the White House staff and I am genuinely worried that the enormous economic impact of Silicon Valley’s edge and cloud companies isn’t adequately reflected in the policy debates taking place there. Given the extraordinary market power and plugged-in political clout of the few high-speed Internet access providers in this country, the Valley can no longer simply come up with tech solutions to get around what’s going on in Washington.

Tomorrow, the FCC will launch a proceeding for all stakeholders to say what they think about how the federal government should regulate high-speed Internet access. Such a proceeding is not about content or applications; don’t be confused when incumbent network providers tell you the Commission is about to “regulate the Internet.” Rather it’s about separating out the “transport” component and treating phone and cable access networks — the so-called on-ramps — differently than largely unregulated content and applications.

It’s also very important. Entrepreneurs need a level playing field that’s predictable and allows them to launch without asking permission. The network access providers have clearly aimed all of their guns — monetary and otherwise — at the Commission in an attempt to avoid any hint of standardized regulation that would ensure competition or prevent them from monetizing Internet application. The tech community, by contrast, has been all but silent.

The background can be found in the Comcast/BitTorrent dispute about which Stacey has written. The FCC deregulated all high-speed Internet access services beginning in 2002, while saying that it retained the power to regulate them later under something called “ancillary jurisdiction.” Then earlier this year, the D.C. Circuit Court said the FCC couldn’t tell Comcast that its “reasonable network management” wasn’t reasonable without having the right regulatory label applied to high-speed Internet access.

The court’s decision has seriously damaged the Commission’s legal approach to ensuring consumer protection and fair competition when it comes to such a service. Its authority is now in limbo.

Its proceeding tomorrow is aimed at deciding whether the FCC should:

  • continue down the path it had been on (“once more with feeling”)
  • apply all of the 48 elements of traditional regulation, including rate-regulation, to high-speed Internet access (“Title II”), or
  • use a “light touch” approach suggested by Chairman Genachowski that would consist of relabeling high-speed Internet access and then applying a handful (about six) of Title II’s provisions, just the basic elements, to such access (again, just transport, not applications) while refraining from the other 42 (the “Third Way”).

This last approach is what the Commission has so far applied to wireless, yielding what many people seem to think is a pretty pro-innovation and pro-investment situation. But the Commission is making clear that it’s open to all ideas as to how to restore its authority to ensure consumer protection, encourage competition, bring high-speed Internet access to all, get accurate data from the carriers, and take any number of other basic, playing-field-leveling regulatory actions.

Most people who follow these issues think that the Telecommunications Act needs a rewrite, but the regulatory labeling effort won’t get in the way of any legislative revisions. Further, it’s necessary for edge and cloud companies to continue their work without stumbling over the monetization efforts of the enormous carriers, those actors by whose grace each one of us has access to the Internet.

There’s more coming along these lines in the months and years to come. It would be great to see trade associations emerge that will ensure that Silicon Valley’s voices are heard in D.C. Individual actions also make a difference — it’s very easy to file comments with the FCC.

I started off as a lawyer representing tech companies in Washington; I come from the Internet side of the equation. But I’m worried that the Internet side believes it can ignore D.C.. I wish you could, but you can’t. Even though you’ve got the best arguments on your side, they’re not being represented.

Susan Crawford will rejoin the faculty of Cardozo Law School on July 1. She will also become a Visiting Research Collaborator at Princeton’s Center for Information Technology Policy.

Photo of FCC Chairman Julias Genachowski by WiredBike via Flickr under Creative Commons

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