Richard Bennett’s amicus filing in the challenge to the FCC’s open Internet Order


High Tech Forum refrains from taking policy positions, but the FCC’s Open Internet Order was one issue on which Founder Richard Bennett simply couldn’t stay silent. Bennett filed an amicus brief questioning the technical foundation of the new Internet rules, which he says are “hopelessly out-of-touch with the way the Internet actually works today and the way it must work in the future for users and entrepreneurs to get its full benefit.” It’s the first such brief Bennett has ever filed. In this special HTF podcast, Bennett spoke with American Enterprise Institute Visiting Fellow Shane Tews about his brief.

Earlier this year the FCC voted 3-2 to apply Title II rules to the Internet, reclassifying it from a lightly-regulated information service to a highly-regulated telecommunications service – the same classification as plain old telephone service. “I believe the FCC made a mistake,” Bennett said. FCC Chairman Tom Wheeler read the Communications Act as a historian, which might make sense from a “social standpoint,” as the Internet “is the new generic communications platform” that offers functionality similar to the telephone system. But while the telephone network is built on the idea of person-to-person interaction, the Internet is “much, much more than that,” Bennett said. “The factual nature of Internet service is such that it really has to be classified as an information service.”

The Internet is not just a communications platform but also a publication platform. The Internet contains specific network technologies that let it provide services traditionally performed by the telephone network, by cable TV networks and by wireless networks – but “Internetness” is more like an information service than a telecom service, Bennett said.

“There is no function in telecommunications services that compares to the dynamic interaction that occurs between ISPs and their customers to mediate access to bandwidth,” Bennett wrote in his brief. “The Internet is a statistical system that delivers services by estimating its finite resources, assessing the desires of end user applications, and arriving at a series of dynamic compromises that apportion resources to applications. This is an information processing exercise. Telecommunications services regulated under Title II of the Act do not perform this function but broadband Internet access service does.”

Bennett is sympathetic to the chairman’s desire for the Internet to work the way it has always worked. “If you’re a historian, like Chairman Wheeler is, that’s a sensible call, right? But as a technologist … I have literally never been a part of a team whose goal was to prevent change from happening. Everything I ever did, everything every other engineer ever does, is about making things better.”

The future holds new features like the Internet of Things, telemedicine, driverless cars, high-definition immersive conferencing and telerobotics, he said. “If we’re going to make these things happen, I hate to break the news to Washington DC, but the Internet is going to have to change.”

Also joining Bennett in the podcast is Dave Farber, widely known as the “grandfather of the Internet” for training many of the engineers instrumental in designing the network. The Internet is “basically a different beast” than the telephone system, he said. “Both do adaptive routing in some sense, but the Internet is much more focused on computing to gets its job done.”

The standard telephone system is basically a set of independent networks, Farber said, with different networks and rules in each country. But the Internet has never been that way, he said. “The thing that worries me – has always worried me about the simplistic approach that the FCC has taken – is that it’s very hard to regulate something that is not encapsulated by a country.” Regulators can’t discern who their rules might affect somewhere around the globe, he said. “It’s a different beast; trying to apply old-style rules just doesn’t work.”

Added Bennett: “It’s amazingly inconsistent to say on the one hand that the Internet is a revolutionary network, it’s a game changer, it enables us to do things we’ve never been about to do before, it alters the way we do business, the way we run politics, the way the economy works – but at the same time, it’s not so different from the telephone network.”

For more, read Bennett’s brief… or click play.

Richard Bennett Amicus Brief, US Telecom v. FCC by High Tech Forum