Democracy & Technology Blog Jurisdiction to regulate Google?

The Internet Policy Statement adopted by the FCC during the Bush administration provided that “consumers are entitled to competition among network providers, application and service providers, and content providers.”
Consumers may no longer be entitled to competition among Internet application, service and content providers, according to the Washington Post’s Cecilia Kang.

According to sources, that language is rewritten in the draft proposal by [FCC Chairman Julius] Genachowski and has been changed in a way that suggests broadband access providers cannot impair competition for Web applications, service and content providers.

Google has previously stated that the FCC only has jurisdiction to regulate broadband service providers.

The FCC’s open Internet principles apply only to the behavior of broadband carriers — not the creators of Web-based software applications. Even though the FCC does not have jurisdiction over how software applications function, AT&T apparently wants to use the regulatory process to undermine Web-based competition and innovation.

But according to a letter submitted by AT&T, the FCC’s jurisdiction may be may be quite a bit more expansive than Google assumed.

In order to offer Google Voice, Google uses more than just “software.” Google also uses computer servers to control and route incoming and outgoing Google Voice calls; storage devices to store the email addresses, phone numbers, passwords, contact lists, call logs, configuration preferences, and other data belonging to Google Voice customers; transmission links to carry calls to and from their destinations; and a host of other facilities to support Google Voice.
* * * *Google Voice (just like Google Search, Gmail, Google Docs, Google Chat, Google Wave, Google Maps, YouTube and many other Google products) unquestionably qualifies as “interstate and foreign communication by wire or radio” under the Communications Act and is subject to the FCC’s jurisdiction. And even if some aspects of Google Voice do not qualify as a telecommunications service as Google alleges, they would nonetheless qualify as an “information service” under the Communications Act because they would offer a “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” These services are thus no less subject to FCC jurisdiction than is broadband Internet access service, which is an information service. (footnotes omitted.)

In any event, apparently Google and its FCC supporters aren’t taking any chances, and the language is being rewritten to resolve any doubt that Google and other Internet-based information service providers have no obligation to provide consumers with a free and open Internet experience.
AT&T points out the FCC would be powerless to prevent Google from

blocking disfavored websites from appearing in the results of its search engine; or prohibit Google from blocking access to applications that compete with its own email, text messaging, cloud computing and other services; or otherwise prevent Google from abusing the gatekeeper control it wields over the Internet? For that matter, how could the Commission stop any other Internet-based information service provider from engaging in similar behavior that compromises the openness of the Internet ecosystem?

FCC oversight of any segment of the Internet ecosystem would be a tragedy, as it will tend to skew private investment decisions and innovation. Plus, as this discussion indicates, there are few guarantees where regulation might lead.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.