The battle that FCC chairman Tom Wheeler had hoped to avoid is now fully joined. “Reclassification” of broadband access as a telecommunications service under Title II of the Communications Act has now become the broad rallying cry for maximum net neutrality proponents who increasingly see it as the only legal mechanism by which the agency can effectively prohibit the emergence of a two-tier internet, with fast lanes and slow lanes.
The cries have become loud enough that Wheeler’s office has been forced to revise its draft Notice of Proposed Rulemaking to seek comment on whether broadband should be reclassified and what reclassification should look like.
That has alarmed ISPs sufficiently that a coalition of the largest, including Comcast, Verizon, Time Warner Cable and AT&T, along with a variety of telecom trade associations, sent a letter to Wheeler on Tuesday sternly warning that reclassification could have disastrous consequences for future broadband deployments and upgrades:
In recent days, we have witnessed a concerted publicity campaign by some advocacy groups seeking sweeping government regulation that conflates the need for an open Internet with the purported need to reclassify broadband Internet access services as Title II telecommunications services subject to common carrier regulation. As demonstrated repeatedly, the future of the open Internet has nothing to do with Title II regulation, and Title II has nothing to do with the open Internet. As it did in 2010, the Commission should categorically reject efforts to equate the two once and for all.
Republican leaders in both the House and the Senate also sent letters warning against reclassification, including not-so-veiled threats to clip the agency’s statutory and budgetary wings should it go ahead with it anyway. Reclassifying broadband, Senate Minority Leader Mitch McConnell wrote, would “create tremendous legal and marketplace uncertainty and would undermine your ability to effectively lead the FCC.” Whoa.
Wheeler has himself partly to blame for his current predicament. He left reclassification on the table, but largely as a deterrent to discourage broadband providers from challenging other elements of the new rules in court. Now, however, net neutrality maximalists have effectively called his bluff by demanding immediate reclassification.
As with other aspects of the net neutrality debate, however, the argument over reclassification is something of a conceptual red herring.
Reclassification of broadband under Title II would involve designating broadband access service as a “common carrier,” a legal concept originally developed to ensure non-discrimination in freight carriage on canals and railroads that was later applied to the content of communications over telegraph and telephone networks. Title II of the Communications Act of 1934 designated “telecommunications” networks as common carriers subject to a non-discrimination requirement enforced through rate setting and strict supervision by the FCC.
From a purely regulatory point of view, that might seem like an appealing option for ensuring non-discrimination on broadband networks because it’s the easiest-to-hand, well-developed legal concept that could be applied. But at a deeper level, I don’t think common carriage is really what we’re arguing about when we argue about fast lanes and slow lanes.
When you really listen to the arguments the two sides are now making, and the sometime inchoate passions they arouse, they seem much more reminiscent of the centuries-long struggle in England over the Enclosure Movement than a debate over telecommunications policy.
Click here for a very useful primer on the history of the Enclosure Movement, and the most notable rebellions, resistance movements and riots that erupted periodically against it.
The short version: The Enclosure Movement began in the late Middle Ages and proceeded, fitfully, up to the eve of the 20th Century. Its main feature was the gradual partition and appropriation of what had once been “common land,” worked concurrently by “commoners,” into private farms, grazing land and estates. It was driven by myriad forces, from population declines in the wake of the Black Death, shifts in global trade that created new markets for wool, which favored the raising of sheep over crops, inflation brought on by frequent wars, industrialization and avarice (a.ka. profit seeking) on the part of those with the clout and capital to do the enclosing.
Along the way, the enclosure process became entwined with other upheavals in British history, from religious strife to the English Civil War, and was frequently accompanied by violence — more typically inflicted on the commoners whose traditional rights to the use of the land was being usurped, but also as part of periodic uprisings by displaced commoners.
Enclosure was one of the issues animating the Peasant’s Revolt in 1381 and Jack Cade’s rebellion in 1450. By 1549, enclosure became a specific target of resistence, as rebels pulled tore down fences and hedgerows erected by landlords during Kett’s Rebellion. The rebellion was eventually put down by an army under the Earl of Warwick. In the 17th Century, the “Levelers” became notorious for leveling dikes and fences.
Concerned about what else rebellious peasants might get up to, the British crown from time to time made efforts to at least manage the pace of enclosure and soften its impact on the displaced. But the crown itself was also frequently tempted to promote enclosure because it often resulted in more immediately productive — and therefore taxable — use of the land. In any event, by the 18th Century, enclosure had become official government policy, with the passage of the “Inclosure” Acts. Between 1760 and 1870 an estimated 7 million acres (roughly one-sixth the area of England) was enclosed by some 4,000 acts of Parliament.
From open fields to open source
Prior to enclosure, most arable land in England was managed under the Open Field system, by which common land was plowed in adjacent rows, often by communally raised teams of oxen, to be worked by individual peasants. Crop rotation was coordinated, certain fields were periodically left fallow or set aside as hay meadows and after harvest the fields were used to graze the village herd.
It was a model of multi-stakeholder management of common resources, conceptually not all that dissimilar from the multi-stakeholder model of internet governance we know today.
Here’s historian Simon Fairlie’s description of the system in action in one village, based on a 17th Century account by Daniel Dafoe (author of Robinson Crusoe):
PRIVATE In such a system cows are owned and lodged by individual families, who milk them in the morning, and provide whatever medicinal care they see fit. There are no economies of scale to be derived from milking centrally, and the milk is accessible to consumers, fresh from the udder, providing a substantial economy of distribution. Each family also gets its share of the manure.
PUBLIC At an appointed time in the morning, a communally appointed cowherd passes through the village and the cows file out to make their way to the common pasture. There are clear economies of scale to be gained from grazing all the cows together.
PRIVATE In the evening the herd returns and cows peel off one by one to their individual sheds, where they are again milked. Their owners can calibrate the amount of extra feed cows are given to the amount of milk they require.
PUBLIC Milk surplus to domestic requirements is taken to the creamery and made into cheese, another process which benefits from economies of scale.
PRIVATE At Cheddar, families were paid with entire cheeses, weighing a hundredweight or more, which they could consume or market as they saw fit.
The Open Field system was the original open source project. Private actors could make use of and derive economies of scale from shared resources within broadly recognized constraints based on best-effort/least-harm principles. Improvements accumulated (albeit slowly) and were eventually adopted by the larger ecosystem.
Notwithstanding 20th Century ideas about the Tragedy of the Commons (now largely discredited historians except among those who adhere to it for ideological reasons), the Open Field system was remarkably stable and self-sustaining for centuries, undone ultimately only by political choices.
The arguments in favor of enclosure, meanwhile, also have modern echoes. Partition and enclosure, it was said at the time, would provide the necessary incentive for the “improvement” of the land, by encouraging investment and innovation that would yield greater productivity. Its most forceful articulation came in 1793, with the publication by the newly created Board of Agriculture of a series of volumes of General Views on the Agriculture of All the Shires of England, which the historian W.E. Tate described in 1967 as “almost monotonous in their reiteration of the point that agricultural improvement has come through enclosure and that more enclosure must take place.”
That same argument can be heard today, in its obverse, from opponents of broadband reclassification — that it would discourage investment and lead to less innovation and improvements. From the ISPs’ letter to the FCC:
America’s economic future…critically depends on continued investment and innovation in our broadband infrastructure and app economy to drive improvements in health care, education and energy. Under Title II, new service offerings, options, and features would be delayed or altogether foregone. Consumers would face less choice, and a less adaptive and responsive Internet. An era of differentiation, innovation, and experimentation would be replaced with a series of ―”Government may I?” requests from American entrepreneurs. That cannot be, and must not become, the U.S. Internet of tomorrow.
Modern historians generally agree that the Enclosure Movement did indeed lead to agricultural improvements and increased productivity of the land. Some attribute much of the English Agricultural Revolution to the beneficial effects of enclosure. But those improvements unquestionably came at an enormous cost in social and economic upheaval. People were forcibly moved off the land to make way for pastures, villages and communities were destroyed, and a once largely self-sufficient agrarian population was gradually transformed into a largely landless, wage earning proletariat.
The Title II falacy
The reasons for those upheavals, however, or at least their scope, had as much to do with governance as with enclosure per se. The Enclosure Movement, by design but not necessity, did away with the system of multi-stakeholder management of resources in favor of unilateral management and control. That left no mechanism by which the benefits of increased productivity brought about by enclosure could be more equitably shared.
The anti-enclosure rebellions failed, at least in part, because they focused their energy on the trappings of enclosure per se — the fences and hedgerows — rather than on the underlying problem of disenfranchisement.
Today, the internet is unquestionably undergoing its own enclosure movement, with its own concomitant threat of disenfranchisement. That’s true not only at the ISP level. It’s occurring at the internet backbone and interconnection level, and at the DNS governance level as well.
The argument we’re having over fast lanes and slow lanes is, at its core, an argument over the power to partition.
It is here that I part ways somewhat with my colleagues at Gigaom. As I noted at the top, reclassifying broadband access under Title II may be the most readily-to-hand tool to stop Comcast, Verizon and other reflexive monopolists from the unchecked partition of the last mile. But it would also mean treating broadband like a public utility.
A public utility is not a commons and it won’t be governed as one. The danger with reclassification is that it could become simply enclosure by another name, bringing with it the same sort of popular disenfranchisement that commercial enclosure would bring. The landlord might be somewhat more amendable, but a landlord just the same.
As much as practicable, I think the goal should be to preserve as much of the multi-stakeholder model as possible, under best-efforts/least-harm principles.