No Neutral Ground At FCC Net Neutrality Forum

Title II Fight Plays Out In Enforcement Roundtable

Net neutrality stakeholders did not appear to be drawing new territorial boundaries around their positions on new open internet rules in a Friday (Sept. 19) forum. Those boiled down to: Title II is a must vs. Title II is a bust.

The arena was the FCC's latest roundtable discussion on Open Internet rules at commission headquarters in Washington, this one on "effective enforcement."

"Everyone has the right to retreat into their corner and continue stating their talking points," FCC Chairman Tom Wheeler had warned in his opening remarks. "But there is a risk of missing the opportunity to help shape dealing with an issue that is not monochromatic."

No one appeared to want to miss the opportunity to shape, but their positions seemed fairly set.

Strongly on the must side was Susan Crawford, Harvard Law professor, former Obama advisor and one of the biggest critics of Big Media, particularly big ISP's.

With references to Richard Nixon, Gov. Chris Christie's traffic cones (on the info highway), packets being kneecapped and tigers chasing bunnies, Crawford said that the best enforcement regime is a bright-line rule based on, and "only available in," Title II. Period. Full stop.

She hammered Comcast and Time Warner Cable and Verizon and AT&T as terminating monopolies and consumers as collateral damage in "titanic battles" between those gatekeepers for control of the net. She said most Americans have only one choice in ISP's, "the local cable monopoly."

Crawford said the government is the only entity which can take on those companies. Not multistakeholder models, not ombudsmen, not after-the-fact appeals. "They may have a profit motive," she said, but that is trumped by the public interest the FCC is sworn to uphold.

She said Sec. 706 would be watering down Title II to serve those commercial interests.

Crawford said that without that crisp, bright line Title II, and trying to rely on a case-by-case approach, the result would be "posthumous" validation of edge provider complaints about blocking or discrimination. It is hard to unscramble the egg after they have done what they do to edge providers, she said.

Rick Chessen countered that there was nothing simple or straightforward about Title II.

He said the "Very clear language of Title II" on prevents unreasonable discrimination." The FCC rule proposal has turned that around to be an allowance for commercially reasonable discrimination" under Sec. 706 after a court said a ban was too much like a Title II reg.

Chessen pointed out the Title II only compels reasonable rates, terms and conditions. "There is nothing clear and simple or quick about Title II." He called it ill equipped to deal with a quick-moving marketplace.

FCC Chairman Tom Wheeler weighed in on the suggestion from Rep. Anna Eshoo (D-Calif.) that the FCC focus on sec. 202 of Title II, a title II lite approach she posed during an interview on C-SPAN's Communicators series.

"There has been a discussion here about the tension that exists between a case-by-case approach which has flexibility but is offset by cost and time, or a bright-line approach, something that is clear cut but less flexible. There was a proposal that was put forth yesterday by Congresswoman (Anna Eshoo) that said, 'Hey, there are 47 parts to Title II, the only one really you need is sec. 202."

Chessen warned that there was the risk of being able to "forbear" down to just that part, and said he anticipated a "major battle for quite a while in court" about whether they could get down to 202. He pointed to one public interest group filing that suggested only a handful could be forborn (not applied). He said even if it got down to 202 it was something of a myth that you could get down to bright-line rules given that you have to deal with the reasonableness provision or what is or isn't a "like service" or "prioritization."

He touched on the issue of paid peering, asking whether if and ISP lets a server into their facility to speed traffic, as Netflix is doing, does that constitute banned prioritization. He said that under 202, the rhetoric is bright line, but the reality is something different.

Chessen also said bright-line rules were problematic given that the Internet will be different in two months, much less two years, and that a flexible, case-by-case approach rather than prophylactic rules, are the way to respond to new facts and changing business models.

Chessen said the keys were preventing conduct that poses a "real threat to Internet openness," while not discouraging investment and innovation, essentially echoing FCC Chairman Tom Wheeler's take on the challenge.

He said the to the FCC's enforcement goals of legal certainty, flexibility and access to decisionmaking he would add a fourth enforcement principle: fairness.

Chessen pointed out that the FCC is not only the prosecutor but the judge, and advised the FCC to itself maintain its own neutrality — which he called "evenhandedness" — when it is making enforcement decision based on both law and policy.

Crawford downplayed ISPS as merely the sidewalk, with edge provides being the innovators. Chessen countered that "sidewalks" did not have to remake themselves through massive investments to respond to a changing Internet, as the cable industry had.

Also squarely on the side of Title II were Chris Riley, senior policy engineer, Mozilla; and Michal Rosenn from Kickstarter.

"We can't have clear rules without building them on Title II," said Riley. Failing that he said the FCC would be force to inject vagueness and exceptions into its rules to distinguish them from common carriers and get them by the courts.

She said the net neutrality fight is about entrepreneurs, not just the Google's and Netflix's. She said that those entrepreneurs need the protection of Title II. Sec. 706 creates a muddled regime full of uncertainty, she said, and no realistic remedy.

Joining Chessen was David Solomon, former Enforcement Bureau chief, who joined Chessen in making the case for case-by-case. Solomon said that the FCC "needs to avoid unintended consequences that chill investment and innovation."