The Inate Insanity of the Beltway

Harold Feld lays another missive out there — Kerry, Other Ds, Defend FCC Going Ahead on Broadband Authority NOI. The primary argument is that the FCC’s detractors, as the Burger King commerical says — “Want it their way”. Now I won’t deny they do, who doesn’t? But Harold, I think you are intentionally dodging a few key points –

We saw this recently with the EPA and carbon emissions. The Congressional climate change bill stalled. So EPA acted under its existing statutes to make sure Americans have clean air and stuff. “Shocking!” Cried Industry. “An appalling power grab!” Agreed industry allies in Congress. “Just doing our actual firkin’ job you told us to do,” responded EPA. “And if you get your act together to provide more detailed guidance on climate change, we’ll be all set to do what you want. Until then, we do the job you told us to do with the tools we have.”

Which brings us back to the current fight over broadband. After the Comcast/BitTorrent case, spending some time pondering what to do, Genachowski concluded that if the FCC wanted to accomplish anything in the National Broadband Plan or have the ability to protect consumers if anything went wrong, he needed to look at the underlying basis for FCC authority and consider a new approach. That includes proposing “Title II-lite,” “Third Way,” whatever you want to call moving broadband out of the “Title I” ancillary services box and into the “Title II” telecommunications services box. Needless to say, the forces in favor of the status quo reacted predictably by fighting any action tooth and nail.

How do I think Mr. Feld misses the mark? –

• The FCC was designated as the protector and arbiter of the wireless realm to prevent conflict and promote its expansion AS A TECHNOLOGY AND SERVICE. That is what the 1934 act is all about and little has changed from that original mission.
• The expanded intent to protect consumers via ‘net neutrality’? If that is the case then the FCC is the wrong agency to even consider, it should be moved to CPSC. That is their charter. Or the FTC if one thinks that market collusion is harming the consumer. But not the FCC.
• Then here is the big one you don’t feign to mention. In your EPA example, the Court (SCOTUS) ruled that indeed the EPA had the responsibility to consider CO2 as a possibly harmful gas as part of its charter in the founding legislation. In the case of the 1st DC Court, Comcast vs FCC, the Court ruled specifically against the FCC as having no controlling authority.

  You can’t in the second instance down play the rationale of the Court for your own ends then upsell in the first instance when it suits your need. The Courts have been reasonably consistent on this matter of administrative law. Good for them and an awful red herring in your missive.

There are of course the nagging bits that the beltway does not want to face. Like, in several survey’s a full third of respondents in target exurban markets said they would not connect EVEN IF THE PIPE PASSED THEIR HOUSE. What a waste of money. Which is why the physical plant rarely strays outside the major MSA on the country. The other little bit, is even if the FCC were to move forward, how does it get funded? Tax? In an election year? With the Democrats on the defensive? And no authoritative legislative means to fulfill it? Again a waste of time.

If the Beltway wants to see a broadband implementation, then they need to change their mindset. A) The pipe for the exurban space is in the air not the ground. B) That means that Congress should grant tax incentives for WISPs to expand their foot print commiserate with the data rate capabilities. C) That the FCC provide fast track tower approvals and the development of a national construction plan consistent with the National Building Code to be able to fast track tower construction.

But Mr. Feld, the NOI is a dead letter politically.