Broadband & Neutrality Regulation

PFF Announces Summer Events Calendar: 8 Policy Events in DC to Replace Sundance Summit

by on April 23, 2010 · 2 Comments

We at The Progress & Freedom Foundation announced a series of eight upcoming policy events today, taking the place of our previously scheduled Sundance Summit. Beginning this month, the events will run through the summer in the nation’s capital. By moving these events closer to home in this manner, PFF will be better positioned to speak to legislators, policymakers, and tech policy press before Washington turns its attention to the midterm elections.

The series of events (which you can add to your calendar here) will include several breakfast and luncheon panel presentations and two half-day conferences. Covering such areas as communications and competition policy, digital property, digital media freedom and Internet freedom, the events will include:

  • Tuesday, April 27: “Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?” — A panel of experts will debate the future of “must carry” rules in the wake of a new challenge to their constitutionality by Cablevision, and what this decision could mean for other media. (RSVP here)
  • Friday, May 7: “What Should the Next Communications Act Look Like?” — A discussion with key industry stakeholders about the future of the Telecom Act in the wake of the Comcast v. FCC decision and the looming battle over Title II reclassification of broadband. (RSVP here)
  • Thursday, May 20: “Can Government Help Save the Press?” — This conference will discuss the FCC’s new “Future of Media” proceeding and debate what role government should play in subsidizing the press or bailing out failing media enterprises. (RSVP here)
  • Monday, June 7: “The Future of Speech on the Borderless Internet” — A panel of leading cyberlawyers will discuss trans-national regulation and litigation of defamation, hate speech, indecency and political dissent. (RSVP here)
  • Monday, June 21: “Sports Programming & the Challenges of Digital Piracy“— A discussion of the challenges that digital piracy, including unauthorized streaming, poses to professional and collegiate sports that have traditionally earned revenues from telecasts of games, bouts, etc. Continue reading →

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PC World Headline Fail

by on April 20, 2010 · 2 Comments

Stephen Lawson reports here on BitTorrent CEO Eric Klinker’s comments about net neutrality regulation at the eComm conference yesterday. Klinker used the word “regulation” to mean a couple different things in his remarks, but nothing he said justifies the headline PC World gave the story.

Here’s Lawson reporting Klinker’s comments:

“There is no ambiguity. There is not going to be, at least in the near term, a strong regulator for broadband,” Klinker told the eComm conference in Burlingame, California.

Instead, it is the public that will pass judgment on how service and application providers behave, Klinker said. “The public is our regulator.”

“The public is our regulator.” But PC World ran the story under this headline:

“Broadband Has No Regulator, BitTorrent CEO Says.”

It will not be a government regulator; it will be the public. Perhaps Klinker regards the public as a weak regulator, but PC World takes the public to be no regulator at all. Stupendous.

Even the strongest skeptic of markets believes that the public has some influence on businesses’ decisions and actions. With inaccurate headlines like this, PC World could stand to learn what market regulation is like when readers stop reading and advertisers stop advertising.

It’s worth noting that Klinker almost certainly helped incite and organize public reaction to the Comcast Kerfuffle, enjoying a PR coup that is still paying his company dividends. Klinker knows a little bit about how markets regulate.

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BitTorrent Was a Bad Case from the Start

by on April 20, 2010 · 11 Comments

After reading over some of the postings from the few weeks and exchanging emails with TLF’s Richard Bennett, I am coming to see how disastrous a decision it was for the FCC to pursue sanctions against Comcast over its throttling of BitTorrent files.

True, the case, and the court decision has allowed activists to foam at the mouth about a “crisis” in Internet service.

Yet despite the breathless warnings, none of this resonates with the public. The results of a recent Rasmussen Reports poll, posted here by Adam Thierer, that found that 53% of Americans oppose FCC regulation of the Internet.

Perhaps Americans are sanguine because there is no Internet censorship problem. Even though the issues in the BitTorrent case are a bit technical, the public groks on some level that claims by proponents of  regulation that the recent U.S. Court of Appeals decision in favor of Comcast would lead to rampant Internet censorship don’t ring true.

That’s because first and foremost, the BitTorrent case was not about blocking or “censorship.” In fact, in the more than four years of debate, the only real instance of a network neutrality violation, that is, an outright flouting of the guidelines set up by former Chairman Michael Powell, came in 2005 when Madison River Communications blocked Vonage’s VoIP service. And Madison River got caught and fined.

Continue reading →

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“Reclassifying” Broadband: The New York Times Snorts the Fairy Dust

by on April 19, 2010 · 2 Comments

I have a long opinion piece on CNet today, arguing that much of the talk of “reclassifying” or “relabeling” broadband Internet access to bring it under the FCC’s regulatory authority is just that—talk.

On April 6th, the D.C. Circuit Court of Appeals ruled definitively that the squishy doctrine of “ancillary jurisdiction” provides no authority for the FCC to impose its net neutrality rules on broadband Internet providers.

Law professors and paid advocates are doing a good job of convincing journalists who don’t understand the finer points of administrative law that all the FCC needs to undo that decision is the will to change the classification of broadband and…problem solved.

Not quite.  Those who argue the FCC can simply waive a regulatory wand and give itself all the jurisdiction it needs under Title II of the Communications Act are engaging in serious wishful thinking, or worse.

Continue reading →

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Esbin on What the FCC is Up Against with Title II Reclassification

by on April 15, 2010 · Add a Comment

My colleague Barbara Esbin, Director of PFF’s Center for Communications and Competition Policy, was recently asked to participate in a conference call to discuss the D.C. Circuit’s recent decision in Comcast v. FCC and its impact on the FCC’s Open Internet (“Net neutrality”) rulemaking proceeding. Yesterday, over at the PFF Blog, she published her working notes and shows exactly what the FCC is up against as it embarks on its radical plan to reclassify the Internet as a crusty old “Title II” common carrier service. Esbin argues:

To impose Title II regulations on the Internet, the FCC would need to establish a rational evidentiary and sound legal basis to bring Internet service providers under its Title II authority through an act of regulatory “reclassification.”

To accomplish this procedurally, the FCC will have to:

  1. Adopt either a Notice of Inquiry or Notice of Proposed Rule Making proposing that the FCC reverse four of its own prior orders directly on point, one of which has been upheld by the U.S. Supreme Court in NCTA v. Brand X, so that it could declare Internet services to be “telecommunications services.”
  2. Receive public comment on its proposal creating a record that on balance supports its proposed reclassification.
  3. Adopt either a Declaratory Ruling or a Report and Order providing a reasoned factual and legal basis for changing the classification and regulatory treatment for Internet services.

Continue reading →

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My Network Neutrality Regulation Podcast

by on April 13, 2010 · Add a Comment

Late last week, I did a Cato podcast on the D.C. Circuit’s decision finding that Congress hasn’t given the FCC authority to regulate Internet access.

Adam says it’s good and I should post it. I say it’s alright and OK, Adam, I will.

One final point: I don’t like the white space that appears when a blog post with a right-justified picture or object in it but not very much text, so this sentence is to fill that space. (I do crack me up!)

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3 Upcoming Events: Super-Sizing the FTC (4/16), FTC v. Google on AdMob (4/15) & Must-Carry (4/27)

by on April 13, 2010 · 1 Comment

Friday, April 16: I’ll be moderating a PFF Capitol Hill briefing on Super-Sizing the FTC & What It Means for the Internet, Media & Advertising. My panel of FTC veterans and observers will discuss the growing powers of the Federal Trade Commission (FTC). As I’ve mentioned here and here, financial reform legislation passed by the House and now pending in the Senate would give the FTC sweeping new powers to regulate not just Wall Street, but also unfair or deceptive trade practices across the economy. This could reshape regulation in a wide range of areas, such as privacy, cybersecurity, child safety, child nutrition, etc. The FTC has also asserted expanded authority to regulate “unfair” competition in its lawsuit against Intel. Register here for this 12-2 pm briefing in the Capitol Visitor Center!

Thursday, April 15: I’ll be participating in Capitol Hill briefing on Google’s proposed acquisition of AdMob, a leading in-app mobile ad network, which the FTC appears poised to challenge. (RSVP here.) Geoff Manne has probably done the best job debunking arguments against the deal but, sadly, couldn’t make the panel. ITIF’s Dan Castro will moderate a panel including (besides myself):

  • Simon Buckingham, who’s expressed concerns about the deal on his Appitalism blog and accused Google of leveraging Google’s desktop search dominance into the high-end mobile market”;
  • Lillie Coney of the Electronic Privacy Information Center (EPIC), which never passes up an opportunity to denounce Google on privacy grounds;
  • Jonathan Kanter, Cadwalader, Wickersham & Taft LLP, who represented TradeComet.com in their antitrust suit against Google and has also represented Microsoft in the past; and
  • Glenn Manishin – Duane Morriss LLP, an antitrust lawyer who’s represented Google.

Tuesday, April 27: We just announced another PFF Briefing: Cable, Broadcast & the First Amendment: Will the Supreme Court End Must-Carry?, 10:00-11:45 a.m at Hogan & Hartson LLP (555 13th Street NW, Washington, DC). Continue reading →

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The NewsHour on Neutrality Regulation

by on April 12, 2010 · Add a Comment

I sometimes enjoy picking nits with or lampooning our friend Scott Cleland, but today write to point out what an excellent job he did of advocating against net neutrality regulation last week on the NewsHour.

The set-up piece is interesting because of its government-centric take. Net neutrality, it says, is “a set of principles adopted by the Federal Communications Commission in 2005 that limits the ability of Internet providers to treat sites differently.”

The better view, I think, is that neutrality is one of “a set of technical principles that have been implicit in [the Internet’s] design since it began life.” Hey, NewsHour, giving the FCC credit for the neutral engineering of the Internet is like giving the rooster credit for the sunrise.

There’s a telling omission in the NewsHour’s telling of the Comcast Kerfuffle. See if you catch it:

The case began with actions by Comcast in 2007 to interfere with an online service called BitTorrent, a file-swapping site that allows consumers to swap movies and other material over the Internet, files that use a great deal of bandwidth. The FCC then told Comcast it could not block subscribers from using BitTorrent under the commission’s net neutrality rules.

Left out: Comcast had ceased interfering with BitTorrent before the FCC acted due to a variety of market pressures.

But take a look at the piece and Scott’s good advocacy in the discussion that follows the set-up:

Gigi Sohn, who I personally respect and who I agree with on many issues, reaches a bit far when she argues that Comcast degraded BitTorrent because it was a file-sharing site “unpopular with some folks in Congress and some folks elsewhere.” Collapsing net neutrality regulation and intellectual property issues may be good for Public Knowledge’s base, but it confuses many issues and weakens Public Knowledge’s arguments and support.

I think the record is pretty clear that Comcast degraded BitTorrent because of a conflict between the BitTorrent protocol and the DOCSIS protocol running on Comcast’s cable plant. (I know I can rely on comments to correct me or bring nuance to this claim.)

Neutrality was not a gift from government, and I don’t think making a mandate of a good engineering principle will improve the functioning of the Internet or the Internet ecosystem.

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What Accounts for Sudden Public Opposition to Internet Regulation?

by on April 9, 2010 · 9 Comments

I don’t place a lot of stock in polls… until they confirm what I have long believed, that is! According to this new poll by Rasmussen Reports, 53% of Americans oppose FCC regulation of the Internet. Specifically, in response to the question, “Should the Federal Communications Commission regulate the Internet like it does radio and television?” the breakdown was: 27% =Yes, 53% = No, 19% = Not sure.

But here’s what is more interesting. The 27% of “yes” votes represents a stunning 22-point drop in support for federal regulation of the Internet since a June 2008 poll by Rasmussen, which asked the exact same question. Now, what has changed since 2008 that might have led to such rapidly declining support for Net regulation? Could it have had something to do with the FCC’s ambitious plan to centrally plan broadband markets via its 376-page National Broadband Plan? Or its incessant crusade to impose burdensome Net neutrality regulations, which could decimate investment and innovation?

No, I think what really must be to blame for this sudden public uprising against the FCC was Chairman Julius Genachowski’s alliance with the evil Elmo. People have had enough of the little red demon. That’s my theory and I’m stickin’ to it.  I mean, after all, from what my friends on the Left tell me, the American people are just dying to get Net neutrality regulations on the books and have a massive infusion of taxpayer support for Soviet-style broadband plans and media bailouts.  So clearly those things just can’t be driving this sudden public skepticism about the FCC, right?  It must be Elmo.

Public Wants Less Net Regulation

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Phew! The Internet Still Works!

by on April 9, 2010 · 1 Comment

So reports the Internet Freedom Coalition, debunking a variety of shrillitudes from advocates who want the government to regulate the Internet.

And the American Legislative Exchange Council has joined a chorus of support for the D.C. Circuit’s decision upholding the rule of law in the regulatory environment.

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