Cook’s Collaborative Edge

Scott Marcus worked at the FCC a few years back. Before that he helped build the Internet with BBN. And about a year ago he gave a deposition for the EFF on behalf of Mark Klein as the whistle blower in lawsuit against ATT for its illegal surveillance of Americans communications.

Scott knows what he is talking about therefore it is worthwhile paying close attention to his comments about the FC’s just announced moves against cable. On cybertelecom this morning he wrote: The NY Times reports today that the FCC intends to invoke additional regulatory authority over cable based on cable’s allegedly having triggered “… the so-called 70/70 rule of the Cable Communications Act of 1984. Under that provision, the agency may adopt rules necessary to promote “diversity of information sources” once the commission concludes that cable television is available to at least 70 percent of American households, and at least 70 percent of those households actually subscribe to a cable service.” (reproduced in full at the end of this post).”

Marcus: The section of law is brief and exceptionally broad. It is in 47 U.S.C. section 532, and reads in full: “”(g) Notwithstanding sections 621(c) and 623(a), at such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this title.”

Marcus: This seems to me to raise exactly the same concerns that I posed in an earlier post (see below) in connection with rules implemented solely pursuant to Title I authority: It gives the FCC carte blanche to do whatever strikes their fancy, with little or no legislative direction as to what sorts of rules might be appropriate, and what the objectives are. (”Diversity of information sources” covers a LOT of ground!)

It effectively eliminates administrative accountability for the agency.

It puts the increasingly politicized FCC in the position of playing to the political grandstands, albeit with no direct political accountability. In terms of OUTCOME, the effects might prove to be either good or bad, but in terms of PROCESS it seems to me to be completely broken.

Scott takes this as further confirmation of his October 23 2007 post to Cyber telecom: “… There are two ways to achieve government accountability: either thru political accountability, or thru administrative accountability. Each has its place. Administrative accountability means that the government operates within defined norms and rules, and with defined goals.

The pre-Bush FCC mostly operated in the ambit of the Communications Act as amended. It had a defined scope of authority, and it sort of knew what it was trying to achieve. The U.S. used to be very much a beacon to the world in having an INDEPENDENT communications regulatory agency.

What happened in the last few years is, first, the technological and market evolution that puts IP into the core of the network; and second, a series of FCC decisions that specifically exempted IP-based access (which would normally be the area where regulatory oversight is most needed) from the coverage of the statute.

Suddenly, there is no administrative accountability. The FCC has no statute to follow — it is free to play to the political galleries.

In parallel with this, you have a Bush administration that sought to politicize all of those agencies that historically sought to operate more apolitically. You see very much the same trends at the Department of Justice, and also at the FTC. If you look for example at antitrust — I mean REAL antitrust, not what you sometimes refer to as antitrust — those agencies had well articulated standards by which to judge horizontal mergers. Today, it is pretty clear that they reach a political decision whether to permit a merger, and at most pay lip service to their own guidelines.

In sum, today an FCC that has only limited political accountability, and that no longer has administrative accountability (for most things that are IP-related, anyway). In other words, no accountability at all. No wonder it seems to act erratically! This ship’s own captain has smashed its rudder. This is completely broken…

A bit latter Susan Crawford wrote “Scott, you’re absolutely right. This seems to send the Commission sailing blithely into anti-cable territory, with no guideposts to speak of. Total discretion.

For whatever reason, Martin just doesn’t *like* cable, and he’s happy to do to them what he would never do to phone/wireless.

And maybe he feels that this will give him political cover for not coping with the internet access situation here.”

Cook’s Edge: and on my list Susan added: “The real trouble, as Scott M. points out, is that there are zero guideposts in place. The Commission can do whatever it wants, either to cable or to the telcos in providing highspeed internet access. Zero statutory guidance - and arguably zero express delegation of such broad authority by Congress.

Martin is choosing to go after cable, probably to obtain cover for (1) further deregulatory actions in media consolidation and (2) further avoidance of the NN question, notwithstanding all the recent kerfuffles. ”

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