Tuesday, October 24, 2006

NY Times Op-Ed: Stranger than Fiction

Former FCC Chairman William Kennard threw a rabbit punch at Net Neutrality in a strange and questionable op-ed in the New York Times Saturday.

What makes this writing so strange is Kennard's notion that we can best help underserved communities by giving aid and comfort to the "merely rich" companies that routinely overlook them.

What makes the op-ed so questionable is that Kennard supports anti-Net Neutrality legislation without fully disclosing his own financial interests in its passage.

Let's start from the top.

Ignoring the 'Merely Poor'

Somehow Kennard treats the fight over Net Neutrality as a distraction to improved access for all:
"Unfortunately, the current debate in Washington is over “net neutrality” — that is, should network providers be able to charge some companies special fees for faster bandwidth ... Policymakers should rise above the net neutrality debate and focus on what America truly requires from the Internet: getting affordable broadband access to those who need it."

His solution, the nation's largest phone companies – whom he calls the "merely rich" -- should be unfettered by regulation so that they can bring better broadband to previously under-served communities.

Kennard's argument conveniently ignores the past eight years -- under a regulatory regime created in part by Kennard's decisions -- during which access to the Internet for most Americans has become controlled by a handful of companies. During the same time, increases in cost per bandwidth have priced many communities out of the market.

In the years since Kennard helped established the regulatory framework, the United States has fallen from first to 16th in the world in broadband penetration, according to the International Telecommunications Union. It's gotten so bad that The U.S. has gone from 1st in the world to rivaling, as he puts it, Slovenia.

A Problem of His Making

That's bad enough. But then Kennard's piece gets stranger than fiction.

He was the Chairman of the FCC at the time that DSL and cable modems began to roll out. Had he explicitly defined broadband as a common carrier (and hence formally subject to nondiscrimination requirements) and had the FCC produce an iron clad record to support that position, it is quite probable that we would never have opened the opportunity for the network operators to use Kennard's loopholes, as AT&T Chairman Ed Whitacre explained, to craft plans for a discriminatory tax on Web sites.

Kennard could have made Net Neutrality more enforceable and capital would have adapted itself to that framework. Instead, he put his fingers in his ears and refused to deal with the problem. This permitted the network operators to organize their legislators, lobbyists and shills to eventually lead us to the path we have taken now.

It could be Kennard’s fault that we’re in this Net Neutrality battle at all. To come out now in the pages of the New York Times describing Net Neutrality as a distraction is supreme irony, since he's partially the reason that we’re even debating the issue today.

Getting 'Merely Richer'

It gets weirder still. Kennard (and by extension the Times) attempt to cover his post-FCC tracks by disclosing only that "some companies" in which he invests at The Carlyle Group could benefit from passing legislation without Net Neutrality.

For their part, the Times states simply that Kennard sits on the newspaper's board.

But shouldn't they have mentioned that he also sits on the boards of directors of Sprint Nextel Corporation, Hawaiian Telcom and Insight Communications (a cable provider) -- companies that have lobbied to kill Net Neutrality?

It seems, as Larry Lessig puts it, "unseemly" when a FCC Chairman "moves to the boards of the companies he used to regulate, and then uses the op-ed page of a paper on whose board he now sits, to argue for the poor by pushing the agenda of the 'merely rich.'"

Ignoring the Grassroots

Kennard wrongly paints this crucial policy debate as a clash of corporate titans. He writes:
"This is essentially a battle between the extremely wealthy (Google, Amazon and other high-tech giants, which oppose such a move) and the merely rich (the telephone and cable industries). In the past year, collectively they have spent $50 million on lobbying and advertising, effectively preventing Congress and the public from dealing with more pressing issues."

It's true that the phone and cable industry opposes Net Neutrality It's also true that big Internet companies like Google and eBay support protections for Net Neutrality under the law. But the story doesn't end there.

Our unprecedented alliance represents more than 800 pro-Net Neutrality groups from across the political spectrum – including the ACLU, the Christian Coalition, the American Library Association and every major consumer group in the country.

SavetheInternet.com hasn't taken a penny of corporate money from the big Internet companies or anybody else. More than a million real people have signed a petition supporting Net Neutrality at SavetheInternet.com or on the Web sites of coalition members, generating hundreds of thousands of calls and letters to Congress.

Thousands of bloggers have linked to this site -- many of them posting free ads to counteract the expensive misinformation campaign launched by Astroturf (fake grassroots) groups like Hands Off the Internet and TV4Us.

The debate over Net Neutrality isn't being fought between corporate Titans alone. It pits the special interests of the few (phone and cable companies) against a vast grassroots effort involving Americans from every corner of society.

Kennard conveniently ignores the word-of-mouth campaign that has lifted the crucial issue of Net Neutrality from obscurity and thrown a wrench in the phone and cable giants' plan to overhaul our telecommunications laws behind closed doors.

The debate over Net Neutrality should be a broad, public conversation about what the future of the Internet will look like. By portraying this issue as corporate infighting, Kennard appeases his colleagues among the "merely rich," but he fails the rest of us.

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