Q&A: Michael Powell: Title II Move Could Spark ‘War’

Reclassifying Internet Would Be a Disaster, Warns Ex-FCC Chairman

By John Eggerton -- Multichannel News, 3/29/2010 7:09:00 AM

Former Federal Communications Commission chairman Michael Powell, now a senior adviser with Providence Equity Partners, is stumping for digital literacy and universal access to broadband as honorary co-chairman of Broadband for America, whose 200 or so members include the cable and wireless lobbies, computer makers and a veritable host of others. In the wake of current FCC chairman Julius Genachowski’s unveiling of the National Broadband Plan, Powell weighed on a host of related issues. The man who helped classify the Internet as a more lightly regulated Title I information service says to try and reclassify it as a Title II service would be a disaster leading to a long court fi ght. He also thinks the FCC can come up with network neutrality rules that are “appropriately light and appropriately thoughtful.” He spoke to Multichannel News Washington bureau chief John Eggerton.

MCN: What do you like about the FCC’s plan?
Michael Powell: I think there is real value to having an integrated, coherent, comprehensive look at the entire ecosystem and at least provide a statement for understanding government thoughts and directions about that ecosystem. I sort of hate using that word all the time. Julius Genachowski is using the word, but it is sort of true. When I was chairman I was a little frustrated that an important part of it is communications, but an enormous part of it is aff ected greatly by other pieces and so I think that is important.
I have always agreed and thought it was useful to begin to consider the idea of broadband solving national challenges and less as a sort of blanket utility. It is also a tool to be incorporated in other areas. And while that part of the plan doesn’t get that much attention because it is so far outside the FCC’s jurisdictional space. I think for the country to be talking about broadband as a component of healthcare and education and all those things I think is a really valuable advancement.
In terms of the communications stuff , I generally like the [universal service fund] direction, though it is a long road and we’ll see where it really goes. It is fraught with distortions, frequently funding the wrong things. If they are able to execute a direction that redirects the broadband and reforms the distortions of that system, that’s a plus.
I like the emphasis on spectrum. I think particularly because there is a lot in that plan that is nice to hear about but is far outside the FCC’s ability to command and direct. But the one thing they do have a lot of infl uence over is spectrum policy.

MCN: Former FCC Chairman Reed Hundt recently said his plan all along was to supplant broadcasting with broadband as the national medium of choice. Was that your secret plan, too?
MP: I don’t believe there ever was a secret plan. I don’t believe Reed ever really had a secret plan. … I don’t really subscribe to the notion that the government anoints through a plan or otherwise what is the declared national infrastructure. It seems to me the market and the public decide that.

MCN: What do you make of the FCC’s talk in the plan of a free broadband service, and particularly if it is a condition for wireless spectrum auction winners?
MP: Honestly, I am super-doubtful about that. I think we have seen it before. I think all the things that were troubling about it then are troubling now. I think there are elements of this report that are in internal tension with themselves.

MCN: What do you think about the FCC possibly classifying Internet service as a Title II service subject to mandatory access?
MP: I think that idea is an unadulterated disaster.

MCN: Not a surprise, since yours was the commission that defined it as an information service subject to lighter regulations.
MP: Not entirely. Part of that decision was during my commission, part of that was during Kevin Martin’s tenure [Powell’s successor as chairman]. I see so many misrepresentations of historical fact that it is worth noting here that broadband has never been classified as Title II. You will get people who will say: “We’re going back to something.” No, we never had that something. Cable is the leading broadband provider in the United States and it has never been a Title II and never been a common carrier. … The only thing that was ever Title II was the old dial-up telephone service, more because of historical accident than policy forethought.
So, broadband itself has never been Title II. In fact, all the investment that has been deployed in the United States has been on the assumption that it is a lightly regulated information service. If the commission wants to recklessly change and try to fight the battle to reclassify that, we will be in a period of painful, prolonged uncertainty, confusion and war for probably four to six years with an undoubted trip to the Supreme Court interspersed between.
And for a country that says it wants to dramatically up the amount of private investment going on in broadband, that would seem like a very backward way to do it.

MCN: Let’s talk network neutrality for a moment …
MP: I think you can have net neutrality rules that could be appropriately light and appropriately thoughtful. I do worry that a lot of the advocates for the concept at the commission are looking at something that is way more dramatic than that.
I am a really big fan of the open Internet. I think that the four principles that I articulated originally was a better way. It focused on consumer rights and principles and was more manageable. Any time the test is reasonableness, and on a case-by-case basis, there is no bright line. Whether a certain action or permutation of possible actions is or isn’t reasonable is going to be evaluated on a case-by-case basis whenever a carrier attempts to do something and somebody chooses to complain about it.
I think that the most significant thing about the network neutrality proposal is the idea of a nondiscrimation principle. I think if you are candid about that, it is really a principle that protects other businesses and not just consumers. So, the class of complainants that would possibly have the right to bring things to the commission includes a huge host of business relationships that are going to intensify the kind of business-to-business disputes about access and now the commission will put itself in the middle of those. I think that is different. I think that when you put the rules down in black and white, the language is going to the source of much mischief in the way that carriers argue their cases.

MCN: If the FCC does put itself in the middle of this issue, should it apply the rules to applications as well as service providers?
MP: I will say that, putting aside the nittygritty of the commission’s jurisdiction of one thing over the other. All the things that people say the spirit of net neutrality is for, strike me as being much more problematic on the Web [search engine/portal] side than on the Internet [access] side.
On the Web side, we have companies that have substantially higher monopoly market dominance than these carriers do. We have companies on the Web that do stuff to bias their own businesses over other competitors’ businesses much more dramatically I have ever seen and infrastructure provider do.
If I search Google I will get Google-fed video that is from their owned property and not video from someone else’s property. Whole companies spend time trying to make sure they get to be on that front page and not page 10, and if you are on page 10 you’re dead. These are companies that introduce products that go into my address book without my permission and then distribute that information to friends in the form of Google Buzz.
I do think that if the government is going to say that it is that kind of hypothetical activity that troubles them with infrastructure providers, then I think there is something either unfair or biased or dismissive about not paying equal amount of attention to those business practices in the content side of the Web. The average consumer has experienced those kinds of behavioral business choices substantially more than they have experienced anything their carrier is doing to bias their Web experience.
So, maybe the commission will say we don’t have jurisdiction, but arguably you are favoring one set of businesses if one class of providers do things like this all day long and you seem to think they are OK, but then, in the infrastructure context, the same kinds of things would be considered horrible and heinous.

MCN: Commissioner Michael Copps has said that he has been calling for a national broadband plan since 2001. Is there something you should have been doing about broadband back then that you didn’t?
MP: I let every chairman and commission have their day. But the most notable speeches I ever gave in that period were the two speeches on digital broadband migration. I can send you sheets from back then of us having very aggressive Internet broadband policy programs. The only thing we didn’t have is a directive from the United States Congress in the middle of a financial crisis telling us to go write one.