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Do They or Don’t They?

The FCC will temporarily break from the thorny issue of net neutrality as it hosts a staff workshop entitled “Consumers, Transparency & the Internet” later today.  Net neutrality of course was the tech issue du jour last week with the FCC squarely in the spotlight.   For the agency, the issue boils down to non-discriminatory network management practices – requiring that broadband operators treat all content similarly, whether it’s a text only email or a 2.5 gig HD movie file.  And while the issue remains “sexy” with policy-heads, it’s fast becoming clear that net neutrality is just a policy hook; what the FCC really cares about is prescribing rules to ensure access to the wired and wireless Internet  – using the same statutory authority that it already has to regulate telecommunication services.

So far, not so good.  Earlier this month, the FCC suffered a major setback when a federal appeals court appeared to challenge the agency’s authority to regulate net neutrality during oral arguments (with a final decision yet to be issued).  The case involves a 2008 FCC order that forbids Comcast from selectively targeting and interfering with customers who use peer-to-peer (“P2P”) technologies such as BitTorrent.  On appeal, Comcast argued that the order was based on an unenforceable FCC policy position (with no notice or indication of what conduct was permissible under such a policy).  Judge Randolph, one of the 3 appellate judges asked simply: “What independent authority did the Commission have to regulate the Internet?”

Fueling this debate (do they or don’t they) is the deluge of comments from stakeholders in response to an initial FCC comment deadline on the issue.  Net neutrality has resulted in some strange bedfellows; we now have the Electronic Frontier Foundation (whose evidence was instrumental to the FCC’s initial order against Comcast), Google and Verizon all arguing that the FCC should not use telecommunications law to regulate the Internet (point no. 6 in Google-Verizon joint comments).

The FCC’s aggressive moves to assert jurisdiction over broadband access are a marked change from its stance in previous years e.g. the FCC’s Pulver decision finding that a dialup service didn’t fit its definition of “telecommunication or telecommunications service.  Of course, dial-up is a very different product from broadband and we want our federal agencies to be progressive.  But should broadband access –including access through the wireless web – be regulated just like telephone service?  Is the FCC regulatory model of notice, rule-making, a comment period (that can last anywhere from 30 to 90 days) and an appealable order really the way we want to effect meaningful and timely change in how broadband is deployed and adopted?

Two other points to consider:

1. What if the FCC lacks statutory authority and looks to Congress for enabling legislation? If the appeals court in FCC v. Comcast finds that the agency lacks the authority to regulate net neutrality, then the FCC will either have to undertake a “major reassessment of its policy framework” or require that Congress act (according to Colin Crowell, senior adviser to FCC Chairman Julius Genachowski).  The last time Congress acted on a major Internet policy issue, we were left with the DMCA.  In retrospect many, including DMCA architect Bruce Lehman, agree that the “notice and takedown” provisions of the DMCA have done little to preserve the rights of content creators. Should we now trust Congress to create a comprehensive regulatory system that will ensure access while preserving incentives for further investment in broadband technologies?

2. Is there a strong case for broadband access regulation? Certainly consumer complaints are a driving factor – but it’s unclear whether the complaints stem from access or price.  On the other hand, broadband operators have invested over $100 billion in broadband infrastructure over the last decade, building the fat pipes that spurred the growth of the web into the entertainment medium it is today. There simply would be no YouTube if we still lived in a world of dial-up.  An AT&T policy brief points out that in 1999 there were 3 million broadband connections (compared to 382 million connections in 2008).  Would we have had this kind of growth if broadband access was regulated?  And what similarities can we see that merit regulating broadband under the same regulatory scheme as a telecommunications service?

As one observer commented during the end of the recent FCC-Comcast appeals court hearing, “see you in a couple years.”  This issue won’t be decided tomorrow.  But in the meantime, the FCC has attempted to reach out and encourage comment on broadband access issues.  So in that spirit, I am cross-posting this entry on the FCC’s Open Internet website.  If you feel strongly (either way) on this issue, I’d encourage you to do the same.

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  1. March 15, 2010 at 12:00 pm

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