“Fixing a Problem That Isn’t Broken”

By Brad

In an op-ed for The Hill, Michigan Republican Representative Mike Rogers comes out strongly against the FCC’s recent net neutrality rules:

The Federal Communications Commission (FCC) is attempting to fix a problem that isn’t broken. It has moved to place the Internet under their jurisdictional umbrella despite past commissions, Congress and the courts indicating that the Internet is an information service and therefore not regulated by the FCC.

On December 21, the FCC released a press statement announcing its move to regulate the Internet. It stated: “The Internet has thrived because of its freedom and openness — the absence of any gatekeeper blocking lawful uses of the network or picking winners and losers online.”

Mr. Chairman, with this order, aren’t you merely making the government the gatekeeper? The order regulates Internet Service Providers, but content providers are left untouched. Implementation of this order will provide no incentives for businesses to work out their disputes. I can tell you, there won’t be any incentives to resolve disputes because the FCC—the new “gatekeeper”—just picked the winner and the loser.

The Fight Continues

By Brad

Juliana Gruenwald of the National Journal reports that House Energy and Commerce Communications and Technology Subcommittee Chairman Greg Walden has is taking the FCC’s recent net neutrality rules head on:

During a speech at the National Association of Regulatory Utility Commissioners winter meeting, the Oregon Republican said he filed the amendment to the continuing resolution that would provide continuing funds for government operations, which the House is set to start considering Tuesday.

Walden said his effort to block FCC funding for the net neutrality rules is an attempt to “lay down a marker and try to put this on hold.”

Via Cecilia Kang of the Washington Post, here’s Walden’s amendment:

“None of the funds made available by this Act may be used to implement the Report and Order of the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (FCC 10-201, adopted by the Commission on December 21, 2010).”

Meanwhile, as Broadcasting & Cable’s John Eggerton reports, FCC Commisioner Meredith A. Baker — who joined fellow Republican Robert McDowell in voting against the rules — will warn the House Communications Subcommittee at today’s hearing that net neutrality will hinder efforts for broadband expansion:

“How do we craft the regulatory environment that will incent broadband deployment to extend networks deeper into communities; to upgrade networks for next-generation services; and to foster broadband competition?,” [Baker] plans to ask, rhetorically.

Debating Regulations at the Edge and the Core

By Brad

Tomorrow, the House Energy and Commerce Committee will be holding a hearing on the FCC’s recent net neutrality regulations. And as Sara Jerome of The HIll reports, a GOP memo making the rounds offers clues as to where the hearings could be headed:

The GOP memo… asks why the Federal Communications Commission (FCC) would move forward with broadband regulations despite “[confessing] in its order that it has done no market analysis.”

It criticizes the agency for its choice to regulate Internet providers—and not the Internet companies who send apps and content over broadband lines.

The FCC order “selectively applies the rules to broadband providers, shielding web-based companies,” says the GOP memo.

The memo stresses that innovation is important “at the edge and the core” of the Internet, referring to both Internet companies and service providers.

“If the mere threat of Internet discrimination is such a concern, and if the FCC has done no analysis to demonstrate why one company has more market power than another, why would discrimination by companies like Google or Skype be any more acceptable than discrimination by companies like AT&T and Comcast?” the memo asks.

Net Neutrality Gets Hearing

By Brad

It’s the debate that refuses to die. Via John Eggerton of Multichannel News:

The House Communications & Internet Subcommittee has made it official.

It has scheduled a hearing for Feb. 16 on the FCC’s new Network Neutrality rules. The hearing is entitled “Network Neutrality and Internet Regulation: Warranted or More Economic Harm than Good?,” though the Republicans in charge of scheduling the hearing have already signaled their answer to that question in no uncertain terms.

Joining the FTC

By Brad

The Washington Post’s Cecilia Kang reports that Tim Wu, law professor and originator of the term “net neutrality,” has taken a position as senior advisor at the Federal Trade Commission.

Stumbling Block

By Brad

When Verizon filed suit against the FCC over net neutrality regulations, they requested that the case be heard by the same judges who ruled for Comcast in their case against the FCC. Yesterday, a federal appellate court has shot that idea down. Via Larry Downes of CNet:

The request was a long shot, and the decision to deny Verizon’s motion wasn’t surprising. In federal courts, the panel of three judges that hear an appeal is usually assigned randomly. However, when an appellate court returns a case to a lower court for further proceedings, subsequent appeals in the same case are often returned to the original panel in the interests of “judicial efficiency.”

But despite the similarities between the Comcast case and Verizon’s appeal of the new rule, the cases are not part of the same docket. Comcast’s appeal was from sanctions issued under the former policy statements, while Verizon is challenging the new rules on their face.

Countering the Suit

By Brad

Last Friday, the FCC asked a D.C. Circuit Court to dismiss Verizon’s lawsuit against net neutrality rules.

Both Sides Taking on Net Neutrality

By Brad

Despite the FCC’s actions last month, the net neutrality debate refuses to go away. Already Republicans in Congress have vowed to dismantle the FCC’s rules, and now legislators from across the aisle are getting in on the act. Reports Broadcasting & Cable:

Senator Maria Cantwell (D-Wash.) has introduced a bill, the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011, that would create a new section under Title II of the Communications Act enshrining the FCC’s six new network neutrality rules and applying them to wireless.

Sen. Cantwell’s bill is co-sponsored by Sen. Al Franken, who has been one of the loudest voices in Congress calling for stricter rules.

And Then There Were Two

By Brad

Another wireless provider, MetroPCS, has decided to take on the FCC in court. Reports Cecilia Kang of the Washington Post:

The company has been the subject of criticism by consumer groups who say MetroPCS’s 4G pricing plans purposefully block certain applications, a violation of the FCC’s Internet access rules. The suit follows a similar legal challenge made last week by Verizon Communications and is expected to be part of a flood of lawsuits against the agency.

“MetroPCS’s concerns regarding the jurisdictional basis for the net neutrality rules, the recent appeal filed by Verizon, and challenges raised by some proponents of Net Neutrality to MetroPCS’ recent 4G rate plans, have caused MetroPCS to appeal the FCC’s net neutrality order to ensure that the concerns of competitive wireless carriers, like MetroPCS, are addressed.” Roger D. Linquist, MetroPCS’s president and chief executive officer, said in a statement.

Reactions From Democrats

By Brad

“Verizon has the legal right to do this, but we are disappointed that they filed suit. We support the FCC’s efforts because they will protect consumers and provide companies with the certainty they need to make investments in our growing digital economy.”

— From the official statement of Senate Commerce Chairman Jay Rockefeller and House Energy and Commerce ranking member Rep. Henry Waxman regarding Verizon’s decision to sue the FCC over net neutrality (via The Hill).

To the Courts

By Brad

The waiting game is over, as Verizon has decided to challenge the FCC’s net neutrality rules in court. Via Todd Shields at Businessweek:

“We are deeply concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself,” Michael Glover, deputy general counsel for New York-based Verizon, said in a statement yesterday. “We believe this assertion of authority goes well beyond any authority provided by Congress.”

At Broadcasting & Cable, John Eggerton reports that Republican Reps. Fred Upton, Greg Walden, and Lee Terry were quick to praise Verizon’s move:

“At stake is not just innovation and economic growth, although those concerns are vital,” the legislators said. “Equally important is putting a check on an FCC that is acting beyond the authority granted to it by Congress. Between our legislative efforts and this court action, we will put the FCC back on firmer ground.”

For more coverage, see the New York Times, the Wall Street Journal, and the Washington Post.

Moving On

By Brad

Although Rep. Marsha Blackburn has submitted a bill to block the FCC from enacting its recent net neutrality rules, Sara Jerome of The Hill reports that Colin Crowell, former senior counsel for the FCC, believes the blocking effort will go nowhere:

Crowell said during at panel at the State of the Net conference that in the coming months that the courts are likely to begin addressing the issue and “people will be looking over their shoulders at a December order.” Issues such as intercarrier compensation, spectrum auctions and the deficit will be much more present in comparison, he said.

“I think those issues start to become front and center and, frankly, when they do, it would be most welcome,” he said.

Into the Sunset

By David

Sen. Kay Hutchinson, who has been one of the loudest voices protesting the FCC’s net neutrality rules, is not seeking re-election.

A Fight on the Horizon

By Brad

The fight between Comcast and Level 3 Communications over content delivery fees may turn out to be the first major tech battle post the net neutrality war. From Todd Spangler of Multichannel News:

The dispute has implications for all Internet network providers and content companies. If Level 3 prevails in convincing regulators that Comcast shouldn’t be allowed levy fees on networks that offload a disproportionate amount of data, it would change the economic model for how traffic is exchanged on the Internet.

Level 3 argues that the FCC’s network neutrality rules, adopted Dec. 21 in a 3-2 vote, explicitly forbid Comcast and other residential broadband providers from charging anyone a “toll” to reach consumers.

In its fight with Comcast, “we may decide to proceed under the Open Internet Order, or we may decide to proceed otherwise,” Level 3 executive vice president and assistant chief legal officer John Ryan said in an interview. “Our objective is to get to the point where the parties have agreed on a fair and reasonable interconnection regime that doesn’t require a toll for the delivery of content to Comcast eyeballs.”

A Challenge From the FCC

By Brad

With net neutrality all but settled — at least until lawsuits start being filed — the FCC is looking for innovative new ways to keep tabs on Internet openness. Hence their “Open Internet Apps Challenge.” From the announcement:

The FCC challenges individuals or teams of researchers, inventors and software developers to produce research and create apps that empower consumers to monitor and protect Internet openness. With this challenge, the FCC seeks to encourage and facilitate the development and use of open Internet software tools, both fixed and mobile, as well as research on relevant open Internet measurement results, methods, techniques and approaches.
The winners of the Open Internet Challenge will be invited to FCC headquarters in Washington, DC, to present their work to the Commission and to be honored with an FCC Chairman’s reception. Winning apps and research will be featured on the FCC’s website and social media outlets. Winners will be reimbursed for authorized travel expenses.

Participants can begin submitting apps starting January 31.

Looking to Reverse the Rules

By Brad

“We are going to be a dog to the Frisbee on this issue.”

That’s a quote from Rep. Fred Upton, new chairman of the House Energy and Commerce Committee, regarding last month’s approval of net neutrality rules by the FCC. Rep. Upton is reportedly looking to reverse the new rules by way of the Congressional Review Act.

The Year Ahead

By Brad

At the National Journal, Bruce Gottlieb, former chief counsel for the FCC, has made some predictions for tech policy in 2011. Regarding net neutrality, Gottlieb writes:

Net Neutrality All Over Again. The net neutrality order will also wend its way through the appellate courts. Plenty of important decision points in the months ahead. Four include:

—Who is going to sue? Probably both ends of the ideological spectrum—broadband providers and public interest groups who feel aggrieved by the split-the-baby compromise.

—Which court will hear the case? Probably the D.C. Circuit. But it could end up elsewhere.

—Will there be a judicial stay? Hard to say. But definitely possible. It matters because engineering decisions made today can’t always be undone, even if the rules at issue are eventually overturned.

—What if the FCC loses again? Maybe Congress will overhaul the antiquated Telecom Act and finally decide, up or down, whether the FCC has authority to regulate broadband. If not, it is hard to imagine any FCC, Democratic or otherwise, taking a third stab at a net neutrality rule. A lot will hinge on what Congress and the FCC look like after the 2012 elections.

Full Open Internet Order

By Brad

The FCC has posted its full Open Internet Order (i.e., Net Neutrality) on its website (PDF).

Leave it to the Experts

By Brad

In an opinion piece for the Indy Star, Dom Caristi, associate professor of telecommunications at Ball University, argues that tech policy like net neutrality belongs in the hands of the FCC:

I will be the first to admit that the FCC has made mistakes before, and that it will make mistakes again. But if you ask me whether I’d rather have communications policy written by five admittedly partisan commissioners whose full-time obligation is to pay attention to electronic media, or by 535 elected members of Congress who must constantly worry about re-election and focus on every issue from national security to Social Security, I say leave it to the experts.

What If…

By Brad

Last week’s adoption of net neutrality regulations by the FCC inspired Slate’s Jack Shafer to conduct a thought experiment: What would the Internet, and the world, look like if the FCC had regulated the Internet at the outset? The resulting article is a must-read. Here’s a taste:

In late 1993, AOL and Delphi become the first online services to offer the Internet. The FCC orders both to drop the feature until the FCC’s labs approve it.

“We can’t have the online industry pushing out beta software on unsuspecting customers willy-nilly. Such software could compromise the users’ computers, interfere with other users’ computers, or crash the whole online world,” the FCC chairman says.

AOL’s popular chat rooms, where people flirt and trade smut, are also closed by FCC decree. The FCC claims that it is shutting the chat rooms, which it had never approved, until AOL devises software that can prove that no child pornography is being traded there. The only way to accomplish that is to exercise the right to open and inspect every file and text message, which the FCC OKs.

Seriously, read the whole thing.