Sam Diaz at ZDNet:
The Washington Post is reporting today that FCC Chairman Julius Genachowski may be leaning toward keeping broadband services deregulated, a move that industry watchdogs claim would be a Net Neutrality killer.
The buzz around Genachowski’s position on broadband regulation comes as the chairman is weighing his response to a court ruling last month that found that the FCC does not have the authority to require Comcast (and other broadband providers) to treat all Internet traffic the same on its network.
That’s a big victory for the providers and a blow to the FCC, which could face a legal challenge of its authority every time it tries to address a broadband policy.
The Post story cites three agency sources who say that Genachowski has not made a final decision but is leaning toward keeping things as-is. The sources told the Post that reclassifying broadband for greater regulation would be “burdensome on carriers and would deter investment.” However, the chairman is also looking at making some changes that would give the FCC more teeth in overseeing some broadband policies.
A somewhat obtuse Washington Post article today says that the FCC Chairman is considering a “deregulatory” framework for Internet access.
Translating the article is simple for those watching this debate at political sites: the FCC is considering following the Bush administration’s disastrous policies of stripping itself of jurisdiction over Internet access, treating such access as effectively un-regulatable “information services.” The FCC’s recent loss at the D.C. Circuit made it clear that the practical effect of such a decision would be to hand the Internet over to the phone and cable companies, undermining innovation, competition online, and Americans’ interests in free speech, in privacy, and in associations. The FCC would then face insurmountable legal obstacles to pursuing network neutrality, a common-sense policy that would forbid cable and phone companies from doing what they’ve long lobbied to do: block or discriminate against websites and applications on the Internet. This would violate Obama campaign promises. (See clips here and here, for example.)
This episode is an example of what Jack Balkin often writes about—how the most important free speech issues of our day will not be decided by the Supreme Court but through technical decisions by bodies like the FCC. And they will be decided not by lawyers or engineers or policy experts, but perhaps by lobbyists and executives working for the phone and cable companies. These lobbyists are urging the FCC to follow the path of bureaucrats and politicians before them: break a promise to the public, but do it in an obscure, technical-sounding way so that nobody understands, until it’s too late.
At the heart of the debate is the issue of Internet openness – whether to allow the phone and cable companies to control everything you do on the Internet, or to ensure that the network infrastructure provides access to an open, unfettered space for communications. Many scholars have written in this space – Jack Balkin, Larry Lessig, Yochai Benkler, Barbara van Schewick, Tim Wu, Mark Lemley, Susan Crawford, and Brett Frischmann, to name a few. All of them have supported control by the public over control by the phone and cable execs. Tim Wu, Susan Crawford, and I explained the legal issue in a letter to the Chairman we sent last Friday.
If accurate, this is outstanding news.
Keeping broadband deregulated is in the public interest because it:
- Respects the rule of law, Congress’ Constitutional authority to set interstate communications policy, the Constitution’s protections, and court precedent.
- Encourages private investment and innovation.
- Provides the greatest opportunity for economic growth/prosperity, and job creation.
- Preserves the stability and continuity of current facilities-based broadband competition policy.
- Continues Congress’ bipartisan Internet policy in law to keep the “competitive free market… Internet… unfettered by Federal… regulation.”
- Keeps the Internet user-centric and highly responsive to user needs, wants and concerns.
- Encourages public-private cooperation to get broadband to all Americans fastest under the FCC’s National Broadband Plan.
- Averts mandating Title II price-regulation (bit-metering) of Internet traffic for the first time.
Nancy Scola at Tapped:
This is a case of ever-shrinking jurisdiction. The Bush-era FCC, in a blaze of deregulatory fervor, decided that broadband Internet wouldn’t be treated like, for example, the telephone, where there’s an expectation that telecom infrastructure is open and designed to best meet the needs of the greatest number of people. Instead, broadband became an “information service” regulated with only the lightest of touches. When the FCC did hold telecoms responsible for breaches, they did it by extrapolating existing authority under the law.
But then, in April, they were told by the D.C. Circuit that they actually lacked the jurisdiction to tell Comcast that they couldn’t filter BitTorrent traffic. In the wake of Comcast v. FCC, advocates argued that the time was well nigh for Genachowski to simply reclaim broadband as a common carrier service. The alternative was to wait for Congress. But there were fears that that the telecoms hold too much sway on the Hill and that Congress, given an inch of the Internet to regulate, will take a mile. If the Post‘s reporting is correct, Genachowski is choosing a third way — simply hanging on to whatever authority the courts and the law have left to the FCC, and trying to hold the telecoms accountable that way. If that’s indeed the FCC’s plan, it’s kinda laughable. It’s like switching to a knife in a gun fight you’re already losing.
Peter Suderman at Reason:
It’s also possible that the FCC could go back to Congress for additional regulatory authority. Though I don’t think a Net neutrality bill is likely to pass through the Senate this session, it’s not totally impossible. And even if no legislation pops up in the short term, Genachowski’s expected decision could help fuel long-term efforts to explicitly beef up the agency’s authority over broadband providers through legislation.