The Jeff Pulver Blog: Where is Aristotle When You Need Him? -- The FCC's Convoluted Logic in Deregulating Telecom Services and Regulating Information Services:

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October 31, 2005

Where is Aristotle When You Need Him? -- The FCC's Convoluted Logic in Deregulating Telecom Services and Regulating Information Services:

I have been trying to line up the logic of the FCC's Wireline Broadband Internet Access Order with the logic of the FCC's CALEA Order. Both were adopted on August 5, so I would think the logic for each Order should have been fresh in the minds of those who voted the items (admittedly, the CALEA Order might not have been fully fleshed out at the August 5 vote, not having been released for 7 weeks).

In any event, could someone please explain to me the FCC's convoluted logic in applying telecom regulation to the Internet in order to impose social obligations (so far CALEA and E-911) on Internet communications providers, while simultaneously removing telecom regulations from wireline broadband Internet access providers in Order to relieve them of their access obligations? Any minor distinction in the definition of telecom services and information services between the Telecom Act and the CALEA statute cannot possibly justify the radically distinct regulatory approaches within the two orders and the contradictory analysis distinguishing and then analogizing broadband and narrowband and narrowband services within the two orders.

First, someone has to explain to me the difference between narrowband and broadband in the FCC's mind as it built the analysis within the two parallel-tracked orders. There is little doubt that the orders were drafted by different teams within the FCC, but the orders were all presumably reviewed and compared by the same managers, by the same General Counsel staff and by the same four Commissioners and their respective staffs. Didn't anyone see any disconnects, any potential hypocrisy? Or, were they all too blinded by their own linguistic and legalistic semantic gymnastics to recognize that the approaches within the two orders are mutually contradictory and utterly RESULT-ORIENTED.

Why are broadband services construed as information services for purposes of relieving IAP of access obligations, but virtually all broadband and narrowband services are construed as telecom service for purposes of CALEA (and E-911)?

The real act of disingenuity on the part of the FCC was determining in the Wireline Broadband Internet Access Order that broadband Internet access services are NOT LIKE narrowband or dial-up services and therefore not subject to telecom regulation, and then, on the same day, concluding that broadband services are JUST LIKE narrowband and dial-up services and therefore subject to CALEA and other social obligations.

I cannot get around the realization that the FCC distorted the facts and used them for opposite ends: (1) we need broadband deployment, therefore we must deregulate broadband networks services by redefining them out from telecom regulation; (2) we have plenty of broadband deployment and we are a wonderful upward trajectory, therefore we can extend CALEA to broadband networks and services.

The companion feat of discontinuity between the two orders is the FCC's argument (1) in the Wireline Broadband Internet Access Order, that broadband networks and services ARE qualitatively different from narrowband networks, therefore telecom regulations need not apply to broadband; and (2) broadband networks are a substantial replacement for narrowband networks, therefore CALEA obligations (and E-911) obligations apply. Which is it? The subtle definitional distinction in the CALEA statute cannot be enough to justify SUCH disparity treatment. This is the starkest example I have seen in recent memory of a government body manipulating language to suit its own ends without any desire for a consistent policy approach. (Maybe, if an accurate account, Scooter Libby's alleged request that Judith Miller say that the information he allegedly provided her about Valerie Plame came from a former Congressional aide is a better example of government misdirection -- maybe).

The logic of the Wireline Broadband Internet Access Order was that the FCC is deregulating wireline broadband Internet access services because (1) carriers NEED incentives to build broadband networks; and (2) broadband networks are qualitatively different from narrowband networks. Paragraph 1 of the Wireline Broadband Internet Access Order sets forth the FCC's objective in treating broadband services differently from narrowband services:

"This framework establishes a minimal regulatory environment for wireline
broadband Internet access services to benefit American consumers and promote
innovative and efficient communications. First, this Order encourages the
ubiquitous availability of broadband to all Americans by, among other
things, removing outdated regulations. Those regulations were created over
the past three decades under technological and market conditions that
differed greatly from those of today. Second, the framework we adopt in
this Order furthers the goal of developing a consistent regulatory framework
across platforms by regulating like services in a similar functional manner,
after a transitional period. Finally, the actions we take in this Order
allow facilities-based wireline broadband Internet access service providers
to respond to changing marketplace demands effectively and efficiently,
spurring them to invest in and deploy innovative broadband capabilities that
can benefit all Americans."

In footnote 15 of the Wireline Broadband Internet Access Order, the FCC stressed that:

"our actions in this Order are limited to wireline broadband Internet access
service and its underlying broadband transmission component. . This Order
does not implicate the current rules or regulatory framework for the
provision of access to narrowband transmission associated with dial-up
Internet access services or other narrowband or broadband information
services when provided by facilities-based wireline carriers."

Here are just a few examples drawn from the CALEA Order that really seem inconsistent with the logic of the Wireline Broadband Internet Access Order:

CALEA Order, Para 11: "In today's technological environment, where IP-based
broadband networks are rapidly replacing the legacy narrowband
circuit-switched network, various types of packet-mode equipment are
increasingly being deployed to "originate, terminate, or direct
communications" to their intended destinations."

CALEA Order, Para. 34: "...we have seen an increase in broadband build-out,
undermining any arguments that development of these systems would be
stifled."

Para. 30: "We attach particular significance to the fact that the House
Report language does not say "the publicly switched telephone network,"
which is generally understood to mean the traditional telephone network.
Rather, it refers to "a publicly switched network," which also describes the
Internet backbone network for purposes of CALEA. Indeed, commenters assert
that "the PSTN is not the only publicly switched network: the Internet is
another."

Para 31. "In view of Congress's understanding that entities providing
access to the Internet and to ISP functionalities in 1994 would be subject
to CALEA, we interpret the statute to reach the comparable access functions
provided by today's broadband Internet access service providers. Permitting
technological developments and advancements to remove services or
functionalities from CALEA's coverage that were previously subject thereto
would be directly at odds with Congress's stated purpose that CALEA is meant
"to preserve the government's ability . . . to intercept communications
involving advanced technologies" and "to insure that law enforcement can
continue to conduct authorized wiretaps in the future."

Para 32. "Public Interest Factors Weigh in Favor of Subjecting Broadband
Internet Access Service to CALEA. We further find that it is in the public
interest to deem facilities-based broadband Internet access service
providers to be "telecommunications carriers" for purposes of CALEA under
the SRP. The public interest factors that we consider in reaching this
determination - the effect on competition, the development and provision of
new technologies and services, and public safety and national security - on
balance, support this finding."

And so, remind me again why the same logic doesn't apply across the two Order adopted on the same day? Am I missing something? Please help me see how to reconcile what appear to be irreconcilable inconsistencies within these two orders. Is there something more than a simultaneous effort to twist words and statutes to suit its own ends, rather than the coming up with a coherent policy framework consistent with the express intent of Congress? I don't mean to be flip. If this is not a pure case of result-oriented, regulatory rewriting of legislation, I am missing something. Please don't give me smart-alecky responses like "Jeff, you are obviously missing a few brain cells." I really would like to understand the logic. I never took advanced philosophy. I never went to law school. Is this just the FCC engaging in one big Socratic Method exercise with the industry to get us to point out the illogic? Where is Aristotle? Where is Wittgenstein when you need him to combat such massive efforts of illogic? I can only hope they are sitting on the DC Circuit.

Tags: voip, fcc, calea

Posted by jeff on October 31, 2005 06:55 AM | Permalink

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Jeff, first let me say I have followed you for years and appreciate your leadership even if sometimes you feel you are standing alone. Our communication technologies have to change and the legal arguments now do defy logic and actually our deterring our national security. Let me give you this example:

As a director in a not for profit called ProjectSafety, I have spent three years in focusing on a network topology that could address the need for interoperability in public safety communications while creating networks that could withstand the natural disasters we have recently seen. These needs lead to a wireless independently powered radio to radio hopping design, using standards based 802.11 and allowing public safety primary access in emergencies. This mesh/ad hoc broadband wireless design was set up to support the FCC approved 4.9 GHz public safety primary access with a migration path to the 5.9 GHz safety and transportation spectrum. I can validate this design a hundred ways and prove its tremendous value over existing communication designs. So why aren’t we building these networks, especially in our vulnerable coastal communities?

No surprise who is stopping us again, legacy incumbents and sadly our own government. The legacy incumbent part is absolutely ludicrous. Starting with cable companies, they might realize that people are already sharing wireless to wireline access so they better get in the wireless business or start loosing profits. The telephone companies want to build fiber to the home. They might find that aerial fiber doesn’t hold up in a hurricane and buried fiber is too expensive. The issue in building an interoperable network for public safety is to shuffle new spectrum for the 700 MHz private network that will cost our country billions, be ready in the next decade and frankly not work as well as the proposed network design.

In saying what I have said, try looking a fireman or a cop in the eye and try to give them an update on the progress of these important indestructible interoperable network designs. Try living off the coast of Florida and look at lines of telephone poles that will break like tooth picks in a hurricane and emergency communication towers that will barley take a 70 mile per hour winds. The answer is not this lobbied greed that frankly gives bad intelligence to our government officials. If I recall correctly the Internet was built to withstand a nuclear holocaust. Apparently we forgot about the last mile of this network design, the local Internet. The vulnerability and lack of interoperability of legacy communication systems were once again clearly demonstrated in Hurricane Katrina. What will it take for those in power to eventually get it?

Oh well, hurricane season is about over and we haven’t had any recent terrorist attacks. Let’s wait another year like we have since the Oklahoma bombing in 1995, the World Trade Center in 2001 and Katrina in 2005. Jeff, keep pushing as I will, for these clearly needed communication technologies and some form of common sense in offering national solutions to these critical needs. The life we save may be our own.

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October 31, 2005

Where is Aristotle When You Need Him? -- The FCC's Convoluted Logic in Deregulating Telecom Services and Regulating Information Services:

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