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The FCC is Taking the Right Step

Today’s announcement from the Commission that it intends to roll back the exercise of Title II utility-style regulation over “any person engaged in the provision of broadband internet access service” at its 14 December meeting is the right step. As a veteran of 40 years of internet related regulatory wars in the FCC and numerous other venues, the Commission’s decision and the actual Rules promulgated in the February 2015 Report & Order stand among the most ill-considered application of authority and regulatory gerrymandering ever witnessed.

The Commission’s first explicit consideration of the treatment of “host-to-host protocols for data communication networks” based on TCP/IP occurred when the Undersecretary of Defense’s newly released Internet Protocol Implementation Guide of August 1982 was transmitted to the FCC’s Office of Science and Technology that year. It occurred in part because the head of that Office and FCC Chief Scientist, Steve Lukasik, was previously the long-time DARPA Director who had authorized, funded, and controlled the development of those internet protocol technologies. I still have the material on my library shelf because I had requested it through Steve in conjunction with related policy-making proceedings at the Commission for which I was a responsible staff member in the early 80s.

The council provided by the staff and reflected in the Commission’s decisions and rules at that time emphatically eschewed Title II jurisdiction over internet protocol based networks as both unwise and unreasonable. It was considered unwise because it would throttle innovation and network development. It was deemed unreasonable because this class of “connectionless networks” are simply too ephemeral and abstruse to be defined or bounded. Those views prevailed as guides of every domestic and international regulatory action for more than 30 years.

Even the US Patent and Trademark Office appellate decision in February 2000 on the long-held copyright ownership of the term “internet” by a banking consortium for their ATM protocol network, resulted in a finding that “the word INTERNET is not inherently distinctive.”

Nonetheless, the unfortunate attempt to assert Title II jurisdiction over “any person engaged in the provision of broadband internet access service” via the February 2015 Order occurred as an exercise in regulatory and technological folly. The definition adopted was simply a string of undefined abstractions: “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.” And, just to add more fuzziness to the boundary, the Commission tossed in “this term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.” One is tempted to ask “what the hell are they talking about.”

The action makes no sense whatsoever from the perspective of network technological change. The most profound contemporary networking development in which industry worldwide is engaged is the virtualization and orchestration of all network infrastructure and instantiated out of cloud data centers. It is known as NFV-SDN (Network Functional Virtualisation—Software Defined Networks), including being manifested as 5G on global mobile network infrastructures with seamless wireline and cable network interoperability. End-points are also virtualized and their addresses using different transport protocols leased as needed. The entire fiction of “the Internet” goes away. FCC’s Title II order only makes technological sense if one assumes that the technology is frozen in a world of Internet Kool-Aid that manifests itself only in Washington politics.

So as one of the remaining “old boys” spanning all these diverse worlds over the past six decades, it all begs the question “how did this happen.” The basic answers arguably involve a certain arrogance in turning a transitory technology abstraction into an orthodox religion that is then used to attempt regulatory dominion in Washington politics. There are also gulfs among generations of people whom came onto the scene in the late 90s and beyond who had no concept of what went before, or perspective on global network infrastructures. Everything was stuffed into the internet genie bottle that solved the world’s ills and deserved the FCC’s Title II protection - not realizing that being regulated as a “utility” could just as well apply to large websites, search engines, or any other service relied on by the public.

So, while the internet religious may rail against the FCC’s actions in three weeks, the Commission is simply eliminating actions that should never have occurred. In the process, it might also consider ditching the internet incantations altogether and talk about 5G and NFV-SDN freedom!

By Anthony Rutkowski, Principal, Netmagic Associates LLC

The author is a leader in many international cybersecurity bodies developing global standards and legal norms over many years.

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