Network neutrality, the issue that prompted a lobbying war between networks and public-interest groups over legislation that was ultimately tabled, returned to the front pages last week courtesy of the first major policy initiative of the new Federal Communications Commission chairman.
Chairman Julius Genachowski has both the will and the way — three Democratic votes — to codify the FCC’s four Internet-openness principles and add a few more, according to his speech to the Brookings Institution last week and the response from his two Democratic colleagues.
A network-neutrality rule would prevent cable operators, phone companies and other broadband Internet-access providers from engaging in discriminatory management of their networks to the commercial disadvantage of Web-based providers of content and applications.
“The FCC will move forward with a quick rulemaking [scheduled for an October launch] and put net neutrality as a signature policy of the Genachowski tenure,” said Alfred Mamlet, telecommunications partner at Steptoe & Johnson in Washington. “I think the chairman and the Democratic majority have a pretty good idea where they are going with this and they will have a new rule next year.”
The agency will also clarify that the Internet-openness rules will apply to wireless as well as wired carriers.
It is unclear whether expanding and codifying the rules will head off network neutrality legislation in Congress.
Rep. Ed Markey (D-Mass.), who introduced a network-neutrality bill earlier this year, said his legislative effort was still on a parallel track. But an aide to Sen. Byron Dorgan (D-N.D.), who has pushed for legislation in the past, told Multichannel News that Dorgan would wait to see how the FCC initiative pans out.
“Senator Dorgan will follow the rulemaking process closely and if legislation is needed to ensure Internet freedom, he will introduce legislation,” said his director of communications, Justin Kitsch.
Genachowski’s announcement was the first polarizing moment of the newly communicating and collegial FCC.
The two Republican commissioners issued a joint statement that diplomatically took aim at two of the new chairman’s avowed hallmarks of commission policy going forward: better communication and letting the fact-finding process drive conclusions, rather than the other way around.
“Although we have not been given any draft or summary of proposed net-neutrality rules, it is clear from the Chairman’s statements that they will be monumental in their scope,” they said. “In the meantime, we are concerned that both factual and legal conclusions may have been drawn before the process has begun.”
FCC sources said the Republican commissioners felt they had been insufficiently briefed on the major proposal.
A source familiar with the chairman’s actions said he briefed all the commissioners individually before the Sept. 21 speech, but the extent of his remarks was not clear. In addition, the fact that the chairman would be proposing to expand and codify those rules was already being reported the Friday prior the speech by Multichannel News and others.
Codified network-neutrality rules would be a win for Internet-content companies like Google and Amazon, and VoIP providers like Skype, and a loss for cable MSOs, telcos and other network providers. Those companies argue that a net-neutrality regime could be a disincentive to investment and threaten business models at a time when the government is focused on broadband deployment.
But FCC Republicans suggested there could be an upside for the largest cable operator, Comcast. The commission found its network-management practices vis-à-vis peer-to-peer file sharing — specifically regarding the BitTorrent service — had violated FCC open-Internet guidelines.
The two new principles essentially target the issues at the heart of the FCC’s ruling against Comcast: network-management techniques and customer notification.
Comcast ended the practice but challenged the FCC’s decision, saying it was not clear that the agency’s principles have the force of law.
That FCC brief was filed with the court the same day as Genachowski’s speech. The FCC argued that it had the authority to find that Comcast had “covertly interfered” with peer-to-peer traffic, and that it was not out of bounds to do so in a rulemaking rather than an adjudication.