Washington— The Federal Communications Commission has authority under current law to ensure that broadband access providers, today mainly cable and phone companies, do not discriminate against Web-based providers of content, search services, and applications, FCC commissioner Michael Copps said last Tuesday.
Speaking to reporters, Copps stressed that the agency needed to go beyond hortatory policy principles and adopt enforceable rules that guarantee network neutrality and shield Internet companies without wires into millions of homes from potential misconduct by companies that do.
“I think we have authority to go now to the second phase of network neutrality, to make sure that there’s not discrimination against those that are not affiliated with the network owners,” Copps said in a press briefing held in his office.
FCC chairman Kevin Martin, in contrast, has favored a deregulatory approach. Last August, he won agency adoption of nonbinding principles related to net neutrality, but he has not endorsed the need for specific agency rules that Copps wants.
The FCC has classified both cable-modem and digital subscriber line service as information services not subject to common-carrier rules that come with nondiscrimination requirements.
Although some have questioned FCC authority to impose network neutrality on information service providers under Title I of the Communications Act, the U.S. Supreme Court issued a majority opinion last June indicating otherwise.
“The [FCC] remains free to impose special regulatory duties on facilities-based [Internet Service Providers] under its Title I ancillary jurisdiction,” Justice Clarence Thomas wrote in National Cable & Telecommunications Association v. Brand X Internet Services.
Copps indicated the FCC could rely on Title I authority to act. “I think we have a good bit of authority in serving the public interest in keeping the networks open to move ahead on this,” he said.
Copps’s comments came amid a raging net neutrality debate on Capitol Hill that pits phone and cable giants like AT&T Inc. and Comcast Corp. against the Internet’s most famous and wealthiest brands, including Yahoo, Google, Microsoft and eBay.
Major cable and phone companies are fighting net neutrality regulation, fearing it would hurt network investment and bar them from recovering any infrastructure costs from companies benefiting from high-speed access to end users.
The House Judiciary Committee was to vote last Thursday on a bill sponsored by its chairman, Rep. James Sensenbrenner (R-Wis.), that would punish network neutrality violations under federal antitrust laws. On June 20, the Senate Commerce Committee is likely to vote on bill sponsored by Sen. Olympia Snowe (R-Maine), Byron Dorgan (D-N.D.) and Daniel Inouye (D-Hawaii) that would, among other things, ban broadband providers from demanding fees from Web players in exchange for priority treatment of their traffic.
“I like Senator Dorgan’s depiction of it as Internet freedom,” Copps said. “I think that’s what this all about, whether we can preserve the openness of the Internet that made it so great …”
Last year, AT&T could not merge with SBC Inc. and Verizon Communications Inc. could not combine with MCI Inc. until they agreed to comply with the FCC’s network neutrality principles for two years.
ADELPHIA DEAL TIE
Then, as now, the FCC’s leadership is evenly divided with two Republicans and two Democrats, a deadlock that almost forces merger applicants to bargain with Copps and FCC Democrat Jonathan Adelstein in order to obtain agency approval.
Comcast and Time Warner Inc. want to buy Adelphia Communications Corp.’s 5 million cable subscribers, but the $16.9 billion deal has lingered at the FCC for more than a year, partly because Time Warner wanted to wait to see whether the Senate would confirm Washington, D.C., communications attorney Robert McDowell as the third FCC Republican. That nomination has stalled in the Senate.
In his review of the Adelphia merger, Copps indicated net neutrality would play a role as would the ability of cable competitors to obtain programming on reasonable terms.
“What’s [the merger] mean for consumers in terms of access to programming? What’s it mean with regard to the future of the Internet? I’ve talked about this control of content and conduit,” he said. “So I think we need to look at the merger with those questions in mind.”