The Open Internet Advisory Committee at one year

Today I would like to make a little shout-out for recent work at the FCC to improve policy making for the Internet. To do that I need to put my preferences front and center.

There are policy debates, and then there is actual policy making. The former grabs headlines on occasion, while the latter rarely does. Both need to take place in order to make progress, albeit, it is a rare person who has the patience and taste for both.

I have little patience for the grandstanding that goes with policy debates, and I do not take much pleasure from the staging and entertainment behind political posturing. I prefer policy making, especially the quieter and more challenging parts of it, and I love being engaged in challenging policy conversations that do not get much publicity.

Just so we are clear, this post will discuss policy making. Policy debate will largely remain in the background. That is unusual for most public discussions about policy for the open Internet, but it seems appropriate for today’s post.

It is the one year anniversary of the Open Internet Advisory Committee. In approximately two weeks the committee will release its first big report, a kind of year-in-review. I am not a neutral observer of this committee. I am a member. I am especially impressed by what the committee did in its first year.

If you think I am biased, then you are right. That is the point of this blog post.

I have been happy to be part of this committee, and contribute to public policy discussions through participation. And whatever else the posturing political world says, I want to be the first to say loudly that this committee has done wonderful work to support policy making, and, until two weeks from now, largely out of the public’s eye.

Background.

To get to the present start with a bit of background. Some time ago the FCC issued a piece of policy known as the “Open Internet Order.” It is a long, thoughtful, and complicated document, and it is still under review (the court hearing is scheduled for September). I am no lawyer, so I am unlikely to state this exactly right, but the hearing has something to do with whether there is “sufficient support of the FCC’s stated basis for authority to make the rules.”

I testified in Congress on behalf of the Order. After a year’s worth of experience on the committee I am even more convinced now (than I was then) that it was a worthwhile to undertake this experiment in committee advising. (If you care to read what I wrote then, read this).

To be sure, there were many reasons I supported the Order and the experiment it represented, and, like others, I had many concerns and worries. That said, on one level I thought many people made a mountain out of molehill. If anybody bothered to read the OIO (and it seemed as if some critics did not), they would have found the OIO was actually rather uncontroversial, even mildly boring, as it lined up with long-standing principals of competition policy in the US, and bent over backwards to make sure it could not be mistaken for older notions that governed network regulation in telephony. On top of that it asked for an advisory committee, which is the equivalent of a Federal agency admitting there were challenges to keeping up, so any policy had to have a set of open-ended issues. To be sure, FCC maintains many advisory committees, particularly on technical matters relating to US networks, where matters can move fast. In that sense, one more advisory committee — to adjust US competition policy in response to technical changes — has lots of precedent and should have been no big deal. But there was quite a vigorous debate about establishing the Order at all, and this committee was part of the broad initiative within the order, and all manner of things got said about it.

So why else did I support the Order? If pressed, one reason came first to mind, and, frankly, has always remained most salient. It could briefly be described as “it is better than the alternatives.” I still think so.

Recall what the general conversation about Internet policy was like a decade ago. Two stark alternative choices tended to dominate public debates about the regulatory future for the Internet. These might be labeled “nothing” and “heavy intervention.” To be frank, I liked neither of these, and still don’t today.

The first one, namely, “nothing,” comes from those with a libertarian bend or a deep distrust of government actions. I understand the argument, and I am friendly with many well-meaning people who hold these views. Many years of studying Internet marketplaces had led me to conclude that aspects of the case for “nothing” were naïve, or just based more on belief than on historical fact. The Internet market had thrived *because* of thoughtful government action, especially at the national level. Moreover, call me an optimist, but I am not a cynic about government regulation. Thoughtful government action still seems possible in the future.

The second argument, namely, “heavy intervention,” comes from those who favor strong government intervention in placing legal limits on Internet suppliers, particularly data carriers, especially those in the internet access business. This line of argument usually has a variety of reasons behind it, but often all these motivations are labeled as “net neutrality.” I understand these arguments too, and I am friendly with many well-meaning people who hold them. In my view, many of the pieces of the argument do not stand up to close scrutiny, or state fears that do not relate directly to actual firm behavior. Even if I bought into some of the concerns (and sometimes I do – see this previous post), there is another general problem. This view often looks for a quick way to get things done, and tends to advocate imposing many of the institutions of telephone regulation on broadband activity. I (and many others) can foresee many potential problems with that approach. The FCC’s existing regulatory processes for telephony just do not map well to the Internet. Even if you count yourself among those who favor government actions, that should cause you to pause.

That was the public debate a decade ago. In a nutshell, it was easy to see what is wrong with these two views. The choice always seemed too stark to me, and, as it turned out, to others as well. The last decade of debate began to articulate two more nuanced alternatives.

These two might be labeled “a third way” and “light-handed net neutrality regulation.” The former considers a variety of government roles the FCC could take on – negotiator, administrative referee, consumer information provider, and something useful other than merely a rule maker. The former tends to be the purview of a few well-meaning insiders, who want to establish “new precedent about process before it is too late” – that is not an oxymoron – and work outside the precedents of telephony. The latter tends to characterize the issues in particular ways that generate specific FCC interventions in targeted situations. Sometimes the latter makes it into broad public debate, as the alliterative label – net neutrality – lends itself to sloganeering. The latter tends to favor specific and targeted actions, and, actually, has had some trial runs during merger reviews in the last decade.

Neither alternative seemed to have much of a chance to blossom during the Bush years. Michael Powell did publicly try to take verbal steps toward establishing new precedent, but it was limited, and his successor seemed to step back from them. Some mergers did allow for limited targeted actions, at least as a little trial, but these were ad hoc, and did not seem to constitute a general or predictable policy. (I have also criticized the lack of predictability in other posts, see here).

After a new administration showed up in the winter of 2009, this conversation got new life. A new chairman, Julius Genakowski, put energy into thinking about the issues and, to make a long story short, came up with the Open Internet Order, or OIO.

Look, self-interested parties said many things about the OIO, and I am not going to rehash all the arguments in a blog post. Let’s keep it simple. For my taste the OIO was more than “nothing.” The OIO also was not “heavy intervention.” Rather, it is a thoughtful step on the path towards a predictable third way or light-handed targeted action. It includes many statements about policy priorities, and about what mattered and why, as well as what was worthwhile to leave untouched. I also thought it contained more than enough good policy to give it a chance to work.

That is a long way of saying: when I got asked to be on the committee I was genuinely curious to see where the committee’s experiment in advice-giving would lead, and I thought it was worth my time to try to help it work well. Now that the committee is releasing its first report after a year it is time to reflect on that experience.

I am just going to say this: there is a lot here to like. This committee should continue.

Why I am positive.

Let me illustrate why I came to that conclusion about the committee with one story. I was involved in the report that broadband-data-caps-research examined data caps and usage thresholds for wireline broadband. This is about as good an example as possible for illustrating the difference between public grandstanding and actual progress in policy making.

Quite a lot has been written about data caps, most of it by advocates, either by hired experts working on behalf of interested parties or by employees at public interest think tanks with ideological predispositions towards a particular side. There is nothing wrong with these white papers. It is useful for the policy debate and important for a healthy democracy that somebody makes the best case possible for a particular proposal or point of view. I certainly learned from reading many of them. But like I said at the start, let’s not mistake the righteous adrenaline rush of a public debate for the nuanced and subtle challenges of articulating an actual policy. It would be an accurate understatement to say that many of these publications talked past one another, sometimes used distinct fact-bases, and opportunely avoided thinking about, well, inconvenient issues.

Look, I will admit that one aspect of this situation did frustrate me. Some verbal combatants did not even start from the same facts, as if they made up their mind about their conclusion before examining any facts. It is hard to make progress on policy when many advocates do that. Our working group had to overcome that. And we did.

In my working group we collected facts, assembled tables of firm practices, and collected stories. Gradually everyone had their say, and the logical implications of different arguments came into view. Disagreements were inevitable. Sometimes the debate got heated, as one might expect when the stakes are high, when the policy actually matters. We grouped these disagreements into “perspectives,” refined the groupings in response to inaccurate statements or the introduction of new views, and highlighted the contrasts between different views. As a writer and note-taker I became educated in the actual variety of ways that terms could be misunderstood, and in the use of terms that various participants found offensive, even though my tin ear could not hear the offense. It was hard work, and very engaging.links

Let’s be clear about what we accomplished. We did not make policy for data caps. Rather, the report mapped the policy landscape. It identified and analyzed where the FCC or another consumer-protection policy-making body, such as FTC, might want to monitor events and where issues remained unsettled. It identified some choices too, and tried to identify bridges between general arguments and specific observable behavior and facts. Unless I am mistaken, we were the first organization to ever do something this comprehensive on this topic – namely, map the landscape by bringing all the arguments into one place. We did not settle anything, nor was it within our purview to settle anything. Rather, we attempted to move the conversation to a more productive place. Call me a naïve idealist, but that is what productive policy discussions are supposed to do.

I have read the other reports too, and they cover novel territory, and they are thorough and careful, and they too attempt to move the policy conversation to a more productive place. I will blog about several of them after the reports become public. For now I will just assert that each of them accomplished something impressive.

Further thoughts

Was this experiment in advice-giving an unmitigated success? Not entirely.

For one, nobody is paid or reimbursed for expenses – even for modest things, like lunch, and certainly not for expensive things, like hotels and plane trips. At some point that gets tiresome, albeit, that should be understood in context. Many participants have their travels and efforts funded by their employer, especially those who come from large firms. But not all the participants come from large firms. Indeed, participants come from a range of situations – from firms, non-profit groups, a few universities (like yours truly), and some people participate in individual capacities. Lack of reimbursement is a penny-wise and pound-foolish way to operate an advisory committee with such a heterogeneous group, as it discourages participation from those without a budget behind them. That is especially foolish for an Internet policy committee, as there are many interesting people in the Internet ecosystem, and it is no secret that many of them lack money.

Second, while the agenda for the committee is pretty circumscribed by the OIO, there is still some scope for discretion, as the committee has to react to current events and try to interpret them in light of the goals of the OIO, and in light of what the policy making apparatus at the FCC finds the most useful. The best use of that discretion is a bit up in the air until the court has its say. It would be much easier if the US courts would make up their mind asap, so we could all get on with it. Alas, I guess that is just the way it is. The Internet will evolve at its (fast) pace, and the US court system will evolve at its (slow) pace, and so it goes.

Finally, due to the budget and uncertainty and novelty, so far committee members have mostly spoken to each other, some FCC staff, and a few interested and hardy souls who showed up to our meetings (in DC, Boston, Palo Alto, and Chicago). There are some very thoughtful and smart people on the committee, and the few who showed up also were smart and thoughtful. Nonetheless, the Internet world is also a pretty complicated place, and it contains a gazillion different firms with distinct perspectives about Internet policy. Just as the FCC benefits from a committee comprised of many voices, the committee could benefit from hearing an even wider set of voices, and so far it is a bit challenging to figure out how to make that happen without a budget.

That is enough for now. When the full report emerges in two weeks I will write more.