It’s a six-person panel:

Rebecca Arbogast, LeggMason
Prof. Nemo*
Harold Feld, Media Access Project
James Gattuso, Heritage Foundation
Russell Hanser, FCC (speaking for himself and off the record [Blog off])
David Isenberg, isen.com
Eli Noam, Columbia U. economics
Christopher Savage, Cole, Raywid & Braverman

Susan Crawford moderates. She asks that if there weren’t a Broadcast Act from the ’30s, what’s spoecial about the Internet that means it needs regulation? Russell gives a reasonable, coherent answer that I am not allowed to report.

Isenberg says that Congress shall make no law abridging freedom of the press. Suppose Congress makes a law that makes it a million times more expensive to own a printing press. Maybe the hypothetical law regulates press prices directly, controls the price of paper, etc. Doesn’t matter. It’d be unconstitutional. Suppose the law made presses only twice as expensive…Now that we’ve established what telcom regulation is, we’re just arguing about the price. “So, when I see Americans struggling with crippled kilobit systems when gigabit is avialable, I want to call the police.” Likewise, spectrum that is owned when it doesn’t have to be owned, broadcast flag, deep packet inspection without a warrant, I want to punish the criminals who are denying me my constitutional right. The Internet puts a printing press in everyone’s house. But it’s more than that. It’s freedom of assembly: The Internet is group-forming…The duty of the Congress and the FCC if they take the FirstAmendment seriously is to remove whatever” stands between the user and the use of the Internet. “We’re rapidly becoming a third world connectivity nation.” [Whooo! Go David!]

Q: Is there a difference between the economic and the social?

Arbogast: Microsoft has to get permission from the FCC for Longhorn. That’s the sort of thing that would drive a lot of people here over the edge. Currently there’s no regulation of VoIP, but I’m not sure why there should be no regulation of it. Right now, the main reason is that it’s a fairly marginal service.

Noam: The Net is an information system, a communication system, and an inkblot onto which people project their fears. We should be talking about regulation in society, not just the Internet. Would we really stand for Internet as a conduit for child pornography from Thailand, gambling, etc.? We can talk about deregulation of communications, but we have to be consistent. The “island of libertarianism” in a regulated environment doesn’t make sense.

Gattuso: I don’t think the Net is exceptional just because it’s the Net. The thing that the Internet changes is the overall premise that’s guided telcom regulation, i.e., that there’s no competition. Bringing competition in changes the basis for regulation. We have to be careful about over-ruling consumers.

The FCC guy has an interesting comment but I’m not allowed to tell you what he said.

Savage: We regulate not only when there are monopolies. E.g., you regulate taxicabs (where there’s plenty of competition) because once you’re in the cab, you’re stuck. Best approach: Create multiple actors to solve as much of this as possible.

Arbogast: For me what makes a lot of the dsicussion more complicated is that underneath is the broadband platform where there isn’t a lot of competition.

Noam: We should see universal service as a societal benefit, not just a tax.

Q: Should we have a central Internet agency to deal with spam, spyware, copyright, etc.?

Gattuso: No, if there’s regulation it ought to be in the agencies that traditionally deal with it,.

Nemo: I’m alarmed by the NPRM‘s [Notice of Proposed Rule Making] very aggressive UN [?] preemption.

Savage: In the Pulver Case, the FCC applied existing law to the question. They woke up and realized there’s a body of law here.

Nemo: The FCC tries to putting this on a constitutional footing (“dormant commerce”?) but ignores 100 years of jurisprudence… [over my head]

Isenberg: What makes the Internet different is that layer 3 of the Internet Protocol defines a publicly known clean interface between what’s underneath the physical network and what’s on top. We should be very clear that the whole justification for regulation has changed because the Internet is now no longer a special purpose industry where one application, such as voice or video entertainment, is tied to one network, such as twisted pair or concentric pair. And we should be really really careful when we say we need Internet regulation because spam is a problem or phishing is a problem. These are applications and need to be addressed at the app level. When we say Internet technology isn’t what it should be, so we have too little unlicensed spectrum or we need fiber, then we’re talking about stuff that’s below that line.

Q: The Net isn’t thing. It’s really an agreement about how to cut things into packets and reassemble them at the other end.

Noam: I don’t care if it’s in this layer or that layer, you have to deal with the problems as they come.

Gattuso: What matters isn’t whether it’s a thing or not, it’s whether consumers can get what they want. [Damn. Wanted the conversation to go further down this path.]

Arbogast: In many areas, we have a duopoly. That makes it hard for regulators to figure out what do.

Savage: Regulatory arbitrage is a good thing. It’s a signal that things are messed up with the regulatory system. You fix it not by killing the canary quicker. E.g., if VoIP only works because it’s escaping the evil access charges, that’s a sign that you ought to get rid of the access charges. Our national policy ought to be to disadvantage the incumbents. [He stresses that he’s speaking for himself, not for his clients.] In our entire history, never has an insurgent taken over from an incmbent networked technology without the government putting its finger firmly on the scales in favor of the insurgents. E.g., land grants for railroads, displacing the value of canals.

Nemo: We should just have the debate about the world we want to see and then figure out the best way to get there. We’ve been most successful where we define particular social goals and create market mechanisms that would give us those goals.

Arbogast: Some people don’t want to pay $50-60 for broadband. She met with Europeans who wanted to stimulate demand because they saw it as a social good…

*NOTE: Originally, I had blogged Prof. Nemo as Daniel Benoliel. In Oct., I received the following from him:

I was not a part of the first panel, as wrongly assumed. The
organizers of the event made the mistake of placing my name tag on the
table.

The source of this confusion derived from the fact that I was indeed
asked to cover this panel on behalf of Yale ISP.

Since, I don’t know who was actually behind Daniel’s name sign, I am referring to him as “Prof. Nemo.” Sorry for the ignorance and the subsequent confusion.

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