Do we really want broadband providers to slow down, block or censor our email, news and financial transactions at will? In an April 6 ruling, 1994 Clinton appointee David S. Tatel changed the landscape for net neutrality, the idea that service providers shouldn't play favorites with regard to what content gets to whom when.
Historically, the Federal Communications Commission (FCC) had treated internet service providers as content managers, rather than communications carriers. As such, the FCC had only "ancillary" powers, more limited its regulation of telephone companies and radio and television broadcasters.
Comcast's peer-to-peer traffic management practices optimized profits, but degraded service (explained here). When the FCC stepped in to enforce the public interest, the company sued. Tatel decided in in Comcast v. FCC that the FCC had failed to tie its claimed authority to any statutory delegation by Congress.
The FCC announces it plans to address Tatel's ruling
Yesterday, the FCC Chairman Julius Genachowski outlined his plan to regain authority by partially reclassifying internet service providers as carriers, contrary to speculation that the FCC would let broadband go unregulated. The WaPo's Cecilia Kang reported on the plan, as did NYT's Edward Wyatt, WSJ's Amy Schatz, Gigaom's Stacey Higgenbotham and Endagadget's Nilay Patel.
Kang writes that sources requesting anonymity advised her that Representative Henry Waxman (D-CA) and Senator Jay Rockefeller (D-WV) had provided
political support for the agency to shift Internet lines to a more regulatory framework.Although she doesn't mention it, the letter is public, indicating the both chairmen of committees overseeing the FCC that they could support defining broadband as a telecommunications
provided that doing so entails a light regulatory touch, with appropriate use of forbearance authority [the technical term for the FCC accepting companies' petitions to avoid some forms of regulation if its judges there is sufficient competition.]In another piece, Kang informs us of the effects of MoveOn and Free Press to get Genachowski to take action.
Interestingly, she adds,
A source at the FCC said the agency has been bombarded with calls. Free Press, a media reform public interest group, called for its 500,000 members to call and e-mail Genachowski to tell him to “protect the Internet” by reclassifying broadband. Some 200,000 of its supporters signed an online petition on the topic. Twitter was flooded with tweets to @fcc and @whitehouse calling for reclassification.
The grass-roots efforts come amid a stark quiet from companies that have been supportive of net neutrality rules. Companies on both sides of the debate have told me they are waiting for a final decision by the agency before commenting publicly.What the FCC says about the ruling
In his statement, Genachowski seems to me either to be putting on a brave face or or spinning, claiming Tatel's decision doesn't
challenge the longstanding consensus about the FCC’s important...role in protecting consumers, promoting competition, and ensuring that all Americans can benefit from broadband communications. Nor does it challenge the commonsense policies we have been pursuing.
The chairman argues that the opinion merely casts doubt
on the particular legal theory the Commission used for the past few years to justify its backstop role with respect to broadband Internet communications
That may be optimistic, as indicated by the protests from broadband providers compiled and rebutted by public interest group Free Press and by the prediction of more law suits to come by CNET's Maguerite Reardon.
What the FCC proposes
Genachowski says he will neither use “ancillary” authority to
anchor actions like reforming universal service and preserving an open Internet
nor treat broadband entirely
as a “telecommunications service,” restoring the FCC’s direct authority over broadband communications networks but also imposing on providers of broadband access services dozens of new regulatory requirements.
Instead he calls for the Commission to follow the approach outlined by FCC Counsel Austin Schlick to
- Recognize the transmission component of broadband access service—and only this component—as a telecommunications service;
- Apply only a handful of provisions...[which] were widely believed to be within the Commission’s purview for broadband [prior to the Comcast decision]; and
- Put in place up-front...boundaries to guard against regulatory overreach.
While NOI fellow Jason Rosenbaum applauds the plan as the "only logical way forward to protect internet neutrality, " Rob Frieden (webpage, email), Chair and Professor of Telecommunications and Law at Penn State calls on the FCC to go further:
The FCC has to confront the messy reality that when ventures offer...services that combine conduit and content and when these ventures vertically and horizontally integrate throughout many market segments, the Commission cannot rely on absolute either/or service dichotomies...I'm with Professor Friendan on this. What I'm not sure of is whether a more complex classification requires Congressional action, something which may prove difficult, as we've seen in the case of the deracinated health insurance "reform."
It’s time to recognize that layered and convergent services defy compartmentalization into convenient, single regulatory classifications and regimes.
Expect a broadband astroturf campaign
Here's a prediction: watch for "citizen" astroturf to oppose the Federal Communications Commission to regulate broadband, telling us that the Commission will infringe on the public opportunities to use the internet. As , pointed out April 8,
Verizon has a track record of signing up non-profit groups to support its telecommunications causes. In addition to providing corporate executives for board positions of various community service groups, Verizon financially supports a wide range of not for profit groups, many of which later turn up writing letters of support in favor of Verizon’s policy positions.Reporting on previous telecom astroturf campaigns
Dampier's contention is supported by Chang's recent reporting on ATT and Verizon funding of think tanks such as the Technology Policy Institute.
This is nothing new. For instance, Sourcewatch indicates that telecoms have long employed Issue Dynamics, Inc. (IDI),
a Washington-based consulting firm that organizes PR campaigns... [utilizing ] NGOs ...[such as] the Gray Panthers and the New York Public Interest Research Group....[S]ome consumer activists...say IDI often does not disclose whom it is working for and argue that IDI's work amounts to astroturf PR.Fred Goldstein (email), who consults with telecommunication start-ups, wrote in 2004 of how many a charity is
willing to sell its name...especially if it's in a subject area that's outside of its area of interest. So IDI can leaven its home-grown astroturf like TRAC with the signatures of some third parties....And back in 2005, Dan Gilmor alerted us to Issue Dynamics "blogger relations" (via archive.org--the page is not available after 2008) as well as a campaign at the end of an in eWEEK article on Philly's municipal broadband by Wayne Rash(email), who had learned learned in the course of researching the story that
The press, of course, rarely gets it. They love to hear from charities. They eat this up, frequently quoting TRAC and other astroturf as if they were real consumer organizations. Competitors should ...point out who is behind these supposedly pro-consumer, but really pro-monopoly, positions.
NMRC [New Millennium Research Council] is actually owned and sponsored by Washington lobbying firm Issue Dynamics Inc., whose clients include most of the major telecommunications companies in the United States. Those companies have been active in opposing municipal wireless and broadband efforts. The company claimed that its reports were nevertheless completely independent.The response from supposedly independent entities has already begun
For instance Kang reports that Bruce Mehlman, co-chairman of the Internet Innovation Alliance weighed in, saying according to Chang:
If the goal is maximizing broadband deployment and adoption . . . new regulations such as these will not help...This sounds more like a political solution likely to imperil investment than a policy initiative that tackles actual challenges in the marketplace.
The high-minded sounding name and mission mask its purpose to mold public opinion in the direction of its corporate sponsors. While the alliance claims to be
a broad-based coalition of business and non-profit organizations that aim to ensure every American, regardless of race, income or geography, has access to the critical tool that is broadband Internet
a look at the non-profit members yields the usual C-PAC suspects such as Americans for Tax Reform. The only surprise is the National Education Association, which has received money from the BellSouth Foundation. Kind of reminds you of the Gray Panthers. I'm skeptical about the Alliance's promotion of
public policies that support equal opportunity for universal broadband availability and adoption so that everyone, everywhere can seize the benefits of the Internet - from education to health care, employment to community building, civic engagement and beyond.It's time for the rest of us to weigh in
While the FCC hasn't announced its public comment process yet, you will be able to find it here and and press secretary Jen Howard (email) has promised me she'll keep me informed of the timetable.
It's hard to make time to weigh in, but it's necessary. We can't just leave this to the broadband operators, such as AT&T, Comcast and Verizon. They hardly qualify as disinterested purveyors of the public good: their internet access business represent a major source of revenue which they want to optimize. As such, I expect they will continue to lobby, as documented by Public Eye at the links I've provided in this paragraph and to fund pr firms and think tanks in their efforts to influence policy.
As New Yorker journalist A. J. Leibling (1904-1963) observed
Freedom of the press is guaranteed only to those who own one.The internet provides us all with the potential to own a press, but the broadbands, if unregulated, have the capacity, in chasing their profits, to shut down not only their competitors but any of us little guys who might question unbridled corporate power.