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FCC En Banc: Annals of the Battle for the Last Mile
February 26th, 2008
Fred Johnson

Harvard Law School was “Markey Country” today as Massachusetts Congressman Ed Markey defended net neutrality in his opening remarks before the FCC’s Public En Banc Hearing on broadband network management practices in Cambridge, Massachusetts. Markey declared the US “no country for old bandwidth” and hung around to observe, with the rest of us, the FCC, “en banc” and securely enclosed in Harvard space droning through a tedious day of testimony and q&a, comfortably surrounded by an audience packed with polite but bored Comcast employees trained to provide applause on cue.

Unfortunately no one followed up on Markey’s cinematic word play from last night’s academy awards winning film, “No Country for Old Men”, by pointing out that we own the Internet, we own the last mile, we put the money up for the whole thing; or as Javier Bardem’s character, Anton Chigurh, put it in the film, “you have been putting it up your whole life, you just didn’t know it.” Instead we got market solutions, tired old neoliberalism, simplistic framing of our choices as a dichotomy of “free market” duopoly or government micromanagement. We also got the beginning of what Yochai Benkler called a never ending flow of micro managing regulatory debates from the FCC if it tries to make the cable and telephony duopoly be nice and adhere to net neutrality. Sorry Cormac, but regulating Comcast and Verizon is going to be like stopping Chigurh/Bardem as he undertakes a bloody, money driven rampage through West Texas. Nice is just not their nature, they are unrelenting profit machines and no matter how hard messieurs Markey, Copps and Adelstein try, the duopoly are going to throttle your networks, and they are going to build them so that you have to ask the duopoly for permission, and cut them in on every new innovative content or software application; or your work just won’t technically run on their networks. They can’t help themselves; they will do it.

There were however some glittering insights and clarity today from Yochai Benkler, Professor of Law, Harvard Law School and Tim Wu, Professor of Law, Columbia Law School. Wu explained the connection between the kind of network hardware and software needed to discriminate against specific applications and surveillance and political oppression. Noting such technologies are keenly in demand among repressive regimes and organizations around the world, Wu urged the Commission to understand that the outcome of the net neutrality debate in the US is a foreign policy issue not simply national communications policy.

Benkler framed the whole discussion as the distinction between using the last mile to allow users to connect to each other versus network owners connecting to audiences. Benkler has network economics cold; check out his book Wealth of Networks - you can download it free. He explains the dirty little secret of all US networks that meld network infrastructure and content, so that the definition of an information service [content] is legally and physically confused with a telecommunications service [infrastructure]: It creates a negative incentive for the network owner to grow their networks, it’s easier to sell their own content if they throttle their networks and choke out the content of their competitors, rather than build big pipes. That is why most developed countries in the world are growing networks that are faster, cheaper and bigger than the ones we have in the US.

Another thing was clear at the FCC hearings today. We are now deeply into the 5 year battle for the last mile. I am not sure when exactly it started, maybe COPE, maybe state-wide franchise legislation that is destroying local cable regulatory frameworks for more simplistic, unrelenting neoliberal economic hack thinking. Whenever it started it is well underway. The interactive nature of the Internet has demonstrated that it is possible to organize communication in a much more democratic fashion. This is the time. There won’t be better time in a long time.