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Meet ‘forbearance,’ the obscure governing tool that just might resolve the net neutrality debate

(Photo credit: <a href="">Carl Chapman</a> , under a Creative Commons Attribution-ShareAlike license.)
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The net neutrality debate might soon, mercifully, be wrapping up, as the Federal Communications Commission prepares to issue a new round of rules. And as the FCC does so, it's exceptionally likely that we'll hear one word again and again: forbearance.

While we prep for the home stretch, it's worth taking a moment to understand exactly what that deceptively dull concept means and where it came from. For that, we turn to Harold Feld. A senior vice president at the advocacy group Public Knowledge (which supports strong net neutrality regulation), Feld lived through the telecom debates of the '90s and aughts. He can cite the proper dates, details and provisions of the U.S. legal code without pausing to double-check his notes. In short, he's the right person for the job.

"Forbearance" means much the same in normal English as it does in telecommunications law -- to restrain oneself from doing something.  In short, it might be key to resolving the net neutrality fight. And yet it is one of modern governing's most poorly-understood tools.

Where forebearance becomes important in the net neutrality debate is where it is being proposed as a sort of negotiated settlement. Take the approach advocated by Silicon Valley Democrat Rep. Anna Eshoo on Wednesday as a "light touch." The plan would move broadband Internet into Title II of the Communications Act of 1934. That's the more heavily regulated title, the one that includes landline telephones. But under Eshoo's plan, the FCC would choose not to enforce some of the act's several dozen provisions that broadband providers find the most onerous, such as imposing limits on how telecom products can be priced. That's forbearance.

How we got forbearance in the first place

It's simple enough in concept, somewhat more complicated in practice. But that's largely because it's a regulatory mechanism meant to cope with an enormously complex field. Feld walks us through the history:

It was the mid-1990s. The AT&T monopoly had been broken up by the courts a decade earlier. Mobile phones were popping up all over. This was a time of increased competition, and yet the 1934 Communications Act that governed the landscape had been written for an era when only a handful of big companies ruled. Congress aimed to light a fire under that competition and began drafting a telecommunications law overhaul. It was, says Feld, "one big experiment."

And yet, there was a bit of a mismatch: The telecom field was in flux and only likely to become more so. "Congress by necessity writes in broad, sweeping language," says Feld, a sensible approach given that nobody wants to have to draft a new telecom law every few years. And so Congress included some regulatory wiggle room in its landmark 1996 Telecommunications Act: a provision -- "Section 10" -- that requires that the FCC not enforce the laws on various parts unless they're needed to protect consumers or generally ensure the public good.

Why the FCC has the power and others don't

It's a power that's unique to the nation's main communications agency, explains Feld, because of how varied the telecom landscape is in the United States. In some parts of America, phone and broadband service is closer to 1934 than to 2014. To steal a line attributed to William Gibson, "The future is here, it's just not evenly distributed yet." So the FCC, which is supposed to be the public sector's foremost expert on such matters, is granted the power to make in-the-weeds and in-the-wires decisions, like, say, setting up a checklist that a Baby Bell might have to tick off before it can offer long-distance service in rural Iowa.

That said, says Feld, Congress had the foresight to know that the five members of the FCC and their staff might not be itching to give up their powers. "We don't trust regulatory agencies," he jokes about the congressional mindset, "to let go of their precious rules."

And so, there are two ways forbearance works. The first is that the agency can simply decide on its own to stop regulating.

The second is more a forcing of its hand: Telecommunications providers ask the FCC to suspend some rule in some context so as to free the provider from whatever restriction. If the agency doesn't respond before a year runs out, that petition is "deemed granted," and the targeted law no longer applies. That process creates a regulatory mechanism unique in American governing: The FCC is given enormous power to decide how the telecommunications market works. But if it doesn't routinely exercise that power, all bets are off, and telephone, cable and broadband Internet companies are free to go at each other with little restriction.

The future of forbearing (and changing your mind)

Some Internet providers, to be absolutely clear, don't think the Title II-plus-forbearance solution is any sort of solution at all. They argue that it's too onerous a process to get the FCC to stop enforcing its rules city by city, technology by technology. But Feld frets about something else. In the nearly 20 years that those regulators have had forbearance powers, they've never really figured out how to un-forbear -- that is, to decide that while waiving a rule was once a smart thing to do, some change in the telecommunications market makes it no longer the best option. There are few, if any, examples of such a reversal, says Feld.

But if the FCC opts to embrace net neutrality through a forbearance scheme, it will likely have to figure out how to make unforbearance work, too -- a good reminder that within the U.S. telecommunications landscape, one of the few constants is reinvention.