Will FCC Take "Nuclear Option"?

With the caveat that there is no direct relationship between the Federal Communication Commission's "National Broadband Plan" and the separate issue of "network neutrality," the two arguably might be related. The reason is that
a U.S. Court of Appeals for the District of Columbia Circuit could rule that, in fact, the Federal Communications Commission lacks sufficient authority to regulate broadband services, for reasons of network neutrality or mostly anything else related to broadband access and applications.

The Court of Appeals challenge by Comcast argues that the FCC has no authority to censure Comcast for throttling Bittorrent access by its broadband access customers.

New and express authority could, of course, be granted by Congress, but that would take some time. And if the FCC has not current statutory authority to create rules for broadband services, does it have authority to push through a reallocation of 500 megaHertz of wireless spectrum, arguably the centerpiece of its national plan?

If it loses, the FCC can appeal to the Supreme Court. But the court might not take the case, and even if it does, it could take years to get a decision.

So the FCC might try to move based on its current authority to regulate "telecommunications" services such as voice. That would overturn all existing federal rules relating to data services, and would incite a nuclear war with telecommunications providers, just as a threat to regulate cable TV industry as a common carrier also would trigger an all-out legal war with the cable industry.

Whether the FCC wants to trigger first an industry uprising and then years of legislation that will introduce massive uncertainty into the market, is unclear. Certainly the FCC cannot be unmindful of the industry response.

That is why any moves to reclassify broadband access, now a "Title I" data service, as a "Title II" common carrier service, will be a nuclear option. It guarantees that the full weight of the telecommunications industry, and possibly the cable TV industry as well, could be marshalled against any such changes.

And since all FCC thinking now is that only private investment will lead to advances in broadband access, a nuclear war with those interests seems self defeating. Not only will the regulatory fights be huge and determined, but no matter what the outcome, lawsuits will fly for years, further obstructing any serious progress. In the five years after the bloody battle, we will be about where we are now, but five years will have passed.

At a time of tumultuous change in the larger business, a six-year to seven-year period of extreme regulatory uncertainty would be damaging in the extreme, partly because investors would balk at investing and service providers would stop investing in wired facilities.

That's thing about what we used to call "mutually assured destruction." The problem with nuclear weapons under the old "deterrence" doctrine is that actual use of the weapons means failure. The only logic to nuclear weapons is not to use them. Oddly enough, we might stand on the precipice of just such a failure.