News

Staking Out Ground on Net Neutrality

1/16/2010 2:00 AM Eastern

There wasn’t anything neutral from the organizations expressing their opinions concerning the Federal Communications Commission’s proposed codification and expansion of the four principles in its Internet policy statement.

The comments in the FCC’s network-neutrality proceeding flooded the commission from every side and angle last week (comments were due midnight Jan. 14). Free Press, which fully backs the FCC’s effort, said there were 13,000 comments from the public alone.

They ranged from requests for even more regulations than the agency proposed to arguments that the commission has not yet demonstrated a need for any new regs.

Unions and content providers said the FCC had to explicitly protect legal content as it was creating and preserving all that Internet openness, while fair-use fans said that copyright protection “should not be part of network neutrality.”

Network-neutrality proponents want a fairly narrow definition of acceptable network management. Comcast, fresh off a strong performance challenging the FCC’s network management finding against it in federal court (the BitTorrent case), echoed its arguments there by telling the FCC late Thursday that it must compile evidence and establish statutory authority before adopting any rules.

While Comcast maintained it shares the goal of an open Internet and applauds a fact-based approach to the rulemaking, it also said that evidence collected by the FCC for its broadband plan raises “serious concerns” that the network neutrality regulations as currently constituted “would put at risk the continued investment and innovation in broadband networks needed to meet those goals.”

The nation’s largest cable operator noted that rules should only be adopted based on real “not conjectural” harms and benefits, and only if addressing both outweighs the risks to innovation and investment. Comcast added: “To date, there is no such record.”

Comcast also said that because there is no express grant of Congressional authority the FCC is relying on the ancillary authority, it says must be tied to specific statutory provisions, with a justification for why it is “reasonably ancillary” to that authority.

Taking a far more proactive regulatory stance was the American Cable Association, which represents over 900 smaller and medium-sized cable operators. “The proposed regulations do not go far enough.”

ACA asked the FCC to extend the open Internet regs to “all providers” of broadband content, applications, services and devices.” ACA said that all those play a key role in either shaping or distorting “the Internet experience.” ACA took the opportunity to continue its campaign against ESPN360, saying it was one of those content providers blocking access.

“ESPN denies consumers access to ESPN360, unless a consumer’s broadband provider has a wholesale distribution agreement with ESPN,” said ACA.

The FCC adopted its principles after deciding that cable-modem service, and then DSL, were information services (Title 1 of the Communications Act) exempt from mandatory access regs, rather than telecommunications services under stricter Title II common carrier regs.

Some commenters suggested that if the FCC concludes there is any doubt of its authority to regulate under Title 1 (doubt likely heightened by the BitTorrent oral argument), reclassifying it as a telecommunications service to clarify that authority should at least be on the table (Public Knowledge, for one, made that argument).

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