[ NNSquad ] Re: Levin Lays Out Telecom Policy Roadmap

[Brett Glass <nnsquad@brettglass.com>]

> "(There is a) consensus emerging that disputes about whether a 
> wireline network management tool is 'reasonable' (or is actually 
> blocking or degrading traffic) to be resolved on a case-by-case 
> basis," [Blair] Levin wrote in the note with analysts Rebecca 
> Arbogast and David Kaut.

This is, perhaps, the scariest thing that a small or competitive 
Internet provider -- or someone who might be interested in 
investing in one -- could possibly hear.

Without clear cut rules (or forbearance from regulation, which is 
appropriate in this case because there is no actual problem to 
address), no small provider can know whether it could -- without 
warning -- be hauled before a tribunal at crippling, potentially 
bankrupting cost and subjected to a "case by case" (i.e. arbitrary) 
decision against it... for violating a "rule" that no one knew 
existed. What's more, because there would be no notice of proposed 
rulemaking (as is required of Federal regulatory agencies), no 
public discussion, no expert review of the proposed rule, and no 
prior publication, the provider which was being attacked in the 
proceeding (because that is what it would, essentially, be) could 
not have known that it was violating anything. Is this fair? How 
could this even remotely be considered to be within the bounds of due process?

What's more, a large corporation, such as an ILEC, could easily 
bear the costs of such a proceeding, and could use 
cross-subsidization to survive an edict which made its Internet 
service unprofitable. But a small, fragile competitor? Especially 
one that was a "pure play" ISP and could not shift costs? Highly 
unlikely. The mere bringing of an action would be the equivalent of 
a death sentence.

If the FCC is to become a "star chamber," independent ISPs might as 
well all fold their hands right now. What's more, consumers might 
as well give up all hope of competition -- and rural areas which 
the cable and telephone companies won't deign to cover might as 
well give up all hope of receiving quality terrestrial broadband services.

--Brett Glass