Press Release
Prepared Remarks by S. Derek Turner at the Free Press Summit
Contact: Timothy Karr, 201-533-8838
WASHINGTON -- Remarks by S. Derek Turner, research director at Free Press, at the Free Press Summit: Ideas to Action in Washington, D.C.:
Thank you, Craig, and good afternoon, everyone. I hope you are enjoying yourselves so far.
It’s been one year since we gathered here last, one year since I stood here and laid out a brief history of U.S. Internet policymaking and explained how the FCC, in just a few short years, through a series of misguided deregulatory decisions, unraveled Congress’ vision of competition law and 40 years of its own successful policymaking.
But my message a year ago was actually one of cautious optimism for the future because we were on the verge of a new day, with new leadership at the FCC, one with the wind of Congress at its back, demanding an action plan to solve our nation’s broadband problems.
And a lot has happened over the past year.
We have seen the broadband stimulus program get under way, with much needed funds going to rural areas and anchor institutions like schools and libraries.
A rulemaking on the open Internet has begun at the FCC. And of course, we now have a National Broadband Plan. But though the National Broadband Plan is unprecedented in its scope and how it was put together, I’m afraid that as far as plans go, it is a mile wide, but just three inches deep.
So here, a year later, I think my assessment has gone from cautious optimism to tempered frustration. As a consumer advocate, I’m frustrated, because though we have heard a lot of talk about action coming out of this FCC, we don’t yet have any results or much of a change in policy.
As a consumer advocate, I’m frustrated because when I look at the National Broadband Plan, I see one giant missed opportunity, one where the FCC took a pass on the chance to implement transformative change and undo much of the damage done by the prior FCC.
By asking for a National Broadband Plan, Congress wrote the FCC a huge check for some political capital, and unfortunately, the FCC chose not to spend it. The undeniable fact -- confirmed by the Broadband Plan’s analysis -- is that we today have a strong cable-telco duopoly and an emerging cable modem monopoly.
The FCC’s own data shows that 96 percent of consumers have two or fewer choices for wired broadband. And although the Broadband Plan emphasizes wireless, the realities of the market and technology indicate that there is no reason to think that wireless, even next-generation wireless technology, is going to change that.
But the National Broadband Plan just whistles past this competition graveyard. Case in point.
In crafting the plan, successful competition policies used in Western Europe and East Asia were preemptively taken off the table before any analysis had even begun. A decision motivated not by empirical realities, but only by a sheer unwillingness to advocate for any policies that might raise the ire of the powerful phone and cable incumbents.
But my disappointment at missed opportunity aside, this plan does move the ball forward in many ways, and there are plenty of important recommendations about universal service, data, transparency, privacy, and access for people with disabilities, that, if implemented, will make the market work better for consumers.
However, in the wake of the Comcast v. FCC decision by the D.C. Circuit Court, the Commission’s authority to act in the broadband arena has been called into question.
This decision finally forced Chairman Genachowski to directly confront the mistakes of his predecessors. Mistakes that took broadband -- the communications medium of the 21st Century -- out from under the direct oversight authority of the Commission.
But in the debate of what the FCC’s next step should be, it seems that many have lost the thread of history, placing adjectives like “radical” onto the framework Congress established for our nation’s two-way communications networks.
Like many of our nation’s major laws, our Communications Act is guided by basic enduring principles: the principles of universal service, nondiscrimination, interconnection, technological advancement, competition and reasoned deregulation. These principles, embodied in Title II of the 1996 Act, were intended to foster the development of a robust, advanced and competitive two-way communications market.
This is why the current heated debate over broadband’s place in Title I or Title II seems so odd when viewed in context of the Communications Act itself.
Of course, two-way broadband transmission networks belong in Title II, because that’s where Congress put them, and intended them to stay. But that does not mean that Congress intended for a permanent heavy hand of regulation to apply to these advanced networks.
Again, Congress recognized that as competition develops, reasoned deregulation is an appropriate response. The Communications Act provided forbearance as the path of reasoned deregulation for our nation’s two-way communications networks.
However, FCC Chairman Michael Powell chose a different path to deregulation, whereby the FCC achieved deregulation by redefining broadband services such that they no longer fell under the agency’s authority.
Chairman Powell, and later Chairman Martin, felt that they could follow this path to deregulation, while preserving the Commission’s ability to uphold the Communications Act’s other principles. But the Title I legal theory they based this assumption on has now been proven to be unworkable.
In other words, Powell and Martin’s legal interpretations “broke” the law, making it unworkable, except through their ancillary authority theory, which is now defunct because of the Comcast rulilng.
Facing this reality, if the FCC wishes to implement the National Broadband Plan and protect the open Internet, reclassification is not only the sole viable option available to the FCC, it’s the option most in line with the stated intent of Congress.
Reclassification would simply restore the framework that Congress adopted for all two-way communications networks in 1996, even in the presence of competition.
Reclassification puts the Commission’s rules back in harmony with the law, and when coupled with the FCC’s proposed forbearance, simply preserves today’s deregulatory status quo.
And while we as consumer advocates are glad the FCC is poised to reclassify, we’re not so sure we should be cheering a march toward the status quo.
Dissatisfaction with the status quo is why Congress asked for a National Broadband Plan in the first place. The status quo is one where we pay far too much for far too little, with rates rising, relative investment levels declining, and the Internet’s openness increasingly under threat.
The status quo is unfettered market power in the hands of a powerful duopoly.
This is clearly not the outcome Congress envisioned when it overhauled the Communications Act 14 years ago.
Congress established a framework for both competition and deregulation in two-way networks, one that aimed to ensure adequate competition was in place before reasoned deregulation occurred.
In other words, Congress aimed to ensure the free market was actually free.
You see, though this point is often lost in today’s DC policy debates, there is actually a very big difference in practice between being pro-free market, and pro-big business.
But don’t just take my word for it; go look at the congressional record, at the hearings, at the statements.
Go ask the leaders who crafted the Act in a bipartisan fashion.
Our next guest here today, Sen. Byron Dorgan, played a very strong role trying to ensure the new legislation actually had some teeth to it when it came to ensuring competition was in place before steps were taken to deregulate.
While the Act was being drafted, Sen. Dorgan said:
“If our goals are to ensure that consumers receive advanced telecommunications and media services at competitive prices, and to free the industry from government regulation, competition is our means to that end.
“But it must be true and fair competition. Competition works in a free market when the market is free.”
Now he’s here with us today, and I’m pretty sure his position on this matter has not wavered one bit over the past 14 years.
This kind of unwavering commitment to the basic principles that serve as the foundation of our nation’s laws is just one of many qualities that define Sen. Dorgan’s public service. His commitment to competition is matched by his tireless efforts on behalf of rural consumers. He’s been a leader working to ensure they are not left on the wrong side of the digital divide.
In this day and age, consumers just don’t have many reliable champions left on the Hill, and Sen. Dorgan is one of those champions who have for years fought for consumer interests, and have done so in a bipartisan manner.
He has a long record of fighting media consolidation and is a hero for Internet freedom, as the Senate’s leading advocate for open Internet policy.
Now, in a bit of sad news, the senator has announced his retirement at the end of this term.
But those of us who share his beliefs in the principles of fairness, nondiscrimination, real competition and the transformative and democratizing power of the Internet, will continue to work with him to uphold those principles while he’s still on the job, and we will work even harder to uphold his legacy through these principles far into the future.
We are so very fortunate to have him here with us today.
Ladies and gentleman, please join me in welcoming Senator Byron Dorgan.
Thank you, Craig, and good afternoon, everyone. I hope you are enjoying yourselves so far.
It’s been one year since we gathered here last, one year since I stood here and laid out a brief history of U.S. Internet policymaking and explained how the FCC, in just a few short years, through a series of misguided deregulatory decisions, unraveled Congress’ vision of competition law and 40 years of its own successful policymaking.
But my message a year ago was actually one of cautious optimism for the future because we were on the verge of a new day, with new leadership at the FCC, one with the wind of Congress at its back, demanding an action plan to solve our nation’s broadband problems.
And a lot has happened over the past year.
We have seen the broadband stimulus program get under way, with much needed funds going to rural areas and anchor institutions like schools and libraries.
A rulemaking on the open Internet has begun at the FCC. And of course, we now have a National Broadband Plan. But though the National Broadband Plan is unprecedented in its scope and how it was put together, I’m afraid that as far as plans go, it is a mile wide, but just three inches deep.
So here, a year later, I think my assessment has gone from cautious optimism to tempered frustration. As a consumer advocate, I’m frustrated, because though we have heard a lot of talk about action coming out of this FCC, we don’t yet have any results or much of a change in policy.
As a consumer advocate, I’m frustrated because when I look at the National Broadband Plan, I see one giant missed opportunity, one where the FCC took a pass on the chance to implement transformative change and undo much of the damage done by the prior FCC.
By asking for a National Broadband Plan, Congress wrote the FCC a huge check for some political capital, and unfortunately, the FCC chose not to spend it. The undeniable fact -- confirmed by the Broadband Plan’s analysis -- is that we today have a strong cable-telco duopoly and an emerging cable modem monopoly.
The FCC’s own data shows that 96 percent of consumers have two or fewer choices for wired broadband. And although the Broadband Plan emphasizes wireless, the realities of the market and technology indicate that there is no reason to think that wireless, even next-generation wireless technology, is going to change that.
But the National Broadband Plan just whistles past this competition graveyard. Case in point.
In crafting the plan, successful competition policies used in Western Europe and East Asia were preemptively taken off the table before any analysis had even begun. A decision motivated not by empirical realities, but only by a sheer unwillingness to advocate for any policies that might raise the ire of the powerful phone and cable incumbents.
But my disappointment at missed opportunity aside, this plan does move the ball forward in many ways, and there are plenty of important recommendations about universal service, data, transparency, privacy, and access for people with disabilities, that, if implemented, will make the market work better for consumers.
However, in the wake of the Comcast v. FCC decision by the D.C. Circuit Court, the Commission’s authority to act in the broadband arena has been called into question.
This decision finally forced Chairman Genachowski to directly confront the mistakes of his predecessors. Mistakes that took broadband -- the communications medium of the 21st Century -- out from under the direct oversight authority of the Commission.
But in the debate of what the FCC’s next step should be, it seems that many have lost the thread of history, placing adjectives like “radical” onto the framework Congress established for our nation’s two-way communications networks.
Like many of our nation’s major laws, our Communications Act is guided by basic enduring principles: the principles of universal service, nondiscrimination, interconnection, technological advancement, competition and reasoned deregulation. These principles, embodied in Title II of the 1996 Act, were intended to foster the development of a robust, advanced and competitive two-way communications market.
This is why the current heated debate over broadband’s place in Title I or Title II seems so odd when viewed in context of the Communications Act itself.
Of course, two-way broadband transmission networks belong in Title II, because that’s where Congress put them, and intended them to stay. But that does not mean that Congress intended for a permanent heavy hand of regulation to apply to these advanced networks.
Again, Congress recognized that as competition develops, reasoned deregulation is an appropriate response. The Communications Act provided forbearance as the path of reasoned deregulation for our nation’s two-way communications networks.
However, FCC Chairman Michael Powell chose a different path to deregulation, whereby the FCC achieved deregulation by redefining broadband services such that they no longer fell under the agency’s authority.
Chairman Powell, and later Chairman Martin, felt that they could follow this path to deregulation, while preserving the Commission’s ability to uphold the Communications Act’s other principles. But the Title I legal theory they based this assumption on has now been proven to be unworkable.
In other words, Powell and Martin’s legal interpretations “broke” the law, making it unworkable, except through their ancillary authority theory, which is now defunct because of the Comcast rulilng.
Facing this reality, if the FCC wishes to implement the National Broadband Plan and protect the open Internet, reclassification is not only the sole viable option available to the FCC, it’s the option most in line with the stated intent of Congress.
Reclassification would simply restore the framework that Congress adopted for all two-way communications networks in 1996, even in the presence of competition.
Reclassification puts the Commission’s rules back in harmony with the law, and when coupled with the FCC’s proposed forbearance, simply preserves today’s deregulatory status quo.
And while we as consumer advocates are glad the FCC is poised to reclassify, we’re not so sure we should be cheering a march toward the status quo.
Dissatisfaction with the status quo is why Congress asked for a National Broadband Plan in the first place. The status quo is one where we pay far too much for far too little, with rates rising, relative investment levels declining, and the Internet’s openness increasingly under threat.
The status quo is unfettered market power in the hands of a powerful duopoly.
This is clearly not the outcome Congress envisioned when it overhauled the Communications Act 14 years ago.
Congress established a framework for both competition and deregulation in two-way networks, one that aimed to ensure adequate competition was in place before reasoned deregulation occurred.
In other words, Congress aimed to ensure the free market was actually free.
You see, though this point is often lost in today’s DC policy debates, there is actually a very big difference in practice between being pro-free market, and pro-big business.
But don’t just take my word for it; go look at the congressional record, at the hearings, at the statements.
Go ask the leaders who crafted the Act in a bipartisan fashion.
Our next guest here today, Sen. Byron Dorgan, played a very strong role trying to ensure the new legislation actually had some teeth to it when it came to ensuring competition was in place before steps were taken to deregulate.
While the Act was being drafted, Sen. Dorgan said:
“If our goals are to ensure that consumers receive advanced telecommunications and media services at competitive prices, and to free the industry from government regulation, competition is our means to that end.
“But it must be true and fair competition. Competition works in a free market when the market is free.”
Now he’s here with us today, and I’m pretty sure his position on this matter has not wavered one bit over the past 14 years.
This kind of unwavering commitment to the basic principles that serve as the foundation of our nation’s laws is just one of many qualities that define Sen. Dorgan’s public service. His commitment to competition is matched by his tireless efforts on behalf of rural consumers. He’s been a leader working to ensure they are not left on the wrong side of the digital divide.
In this day and age, consumers just don’t have many reliable champions left on the Hill, and Sen. Dorgan is one of those champions who have for years fought for consumer interests, and have done so in a bipartisan manner.
He has a long record of fighting media consolidation and is a hero for Internet freedom, as the Senate’s leading advocate for open Internet policy.
Now, in a bit of sad news, the senator has announced his retirement at the end of this term.
But those of us who share his beliefs in the principles of fairness, nondiscrimination, real competition and the transformative and democratizing power of the Internet, will continue to work with him to uphold those principles while he’s still on the job, and we will work even harder to uphold his legacy through these principles far into the future.
We are so very fortunate to have him here with us today.
Ladies and gentleman, please join me in welcoming Senator Byron Dorgan.
