Broadband & Neutrality Regulation

2 Radio Shows about the Comcast v. FCC Decision

by on April 8, 2010 · Add a Comment

Here are two radio programs that took place today discussing the ramifications of this week’s Comcast v. FCC decision. The first was today’s Diane Rehm Show on NPR and it featured Ben Scott of Free Press, Amy Schatz of The Wall Street Journal, and Kyle McSlarrow of the National Cable and Telecommunications Association (NCTA).  I can’t embed it directly here but you can listen to the hour-long show here.

The second program was on KQED – San Francisco’s “Forum with Michael Krasny.” It featured Declan McCullagh of CNET.com, Art Brodsky of Public Knowledge, Eric Klinker, president and CEO of BitTorrent, and me. You can listen to this hour-long debate by clicking below.

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Did You Say You Wanted Another Editorial on the Comcast Decision?!

by on April 7, 2010 · Add a Comment

Well, you got it!  Here’s a essay of mine that The Daily Caller ran today discussing the ramifications of the decision.

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Internet freedom got a reprieve Tuesday when the U.S. Court of Appeals for the District of Columbia slapped down a brazen attempt by the Federal Communications Commission (FCC) to ignore the rule of law and begin imposing onerous regulations on broadband network operators. The decision, Comcast v. FCC, deals with arcane matters of regulatory agency jurisdiction, but the stakes were profound and the ramifications for the future of the Internet will reverberate for years to come.

In a nutshell, the FCC argued it had the right to impose so-called “Net neutrality” regulations on a private broadband operator based merely on a handful of principles that the agency had previously said it would not be enforcing as law. Net neutrality regulations would put FCC bureaucrats in the Internet’s driver’s seat and let them determine what was “just and reasonable” of private networks. Critics have rightly feared that Net neutrality sounded all too much a Fairness Doctrine for the Internet since similar language had been used in the broadcast era to justify all sorts of FCC meddling and micromanagement.

Regardless, the FCC’s original position—that its Net neutrality principles were only principles and nothing more—made sense since even a high school civics student can tell you that only Congress can make laws. Moreover, for a brief time, even the FCC seem to realize that laws that would comprehensively regulate such an important sector of the American economy, as Net neutrality rules would, almost certainly require our elected leaders in Congress to reopen and tweak existing statutes like the Telecommunications Act of 1996. After all, Congress had never authorized wide-reaching regulation of the Net or broadband networks, and so, if the agency wanted to extend its regulatory tentacles and wrap them around the Internet it only seems reasonable they get the blessing of lawmakers before doing so. And, for a time, the FCC stuck to a “Hands Off the Net” approach.

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Consumers in the Driver’s Seat—Oh, the Humanity!

by on April 7, 2010 · 7 Comments

Yesterday, if you paid attention reeeeally carefully (1, 2, 3, 4), you probably figured out the D.C. Circuit had ruled that Congress hadn’t given the Federal Communications Commission power to regulate the Internet and that the FCC couldn’t bootstrap that power from other authority. It was a rare but welcome affirmation that the rule of law might actually pertain in the regulatory area.

But the Open Internet Coalition put out a release containing threat exaggeration to make Dick Cheney blush:

“Today’s DC Circuit decision . . . creates a dangerous situation, one where the health and openness of broadband Internet is being held hostage by the behavior of the major telco and cable providers.”

That’s right. It’s a hostage-taking when consumers and businesses—and not government—hammer out the terms and conditions of Internet access. Inferentially, the organization representing Google, Facebook, eBay, and Twitter believes that Internet users are too stupid and supine to choose the Internet service they want.

What these content companies are really after, of course, is government support in their tug-of-war with the companies that transport Internet content. It’s hard to know which produces the value of the Internet and which should gain the lion’s share of the rewards. Let the market—not lobbying—decide what reward content and transport deserve for their roles in the Internet ecosystem.

As I said of the Open Internet Coalition’s membership on a saltier, but still relentlessly charming, day: “[T]hese companies are losing their way. The leadership of these companies should fire their government relations staffs, disband their contrived advocacy organization, and get back to innovating and competing.”

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More on Net Neutrality Regulation: Suppose Free Press Called a Crisis and Nobody Noticed?…

by on April 6, 2010 · 3 Comments

In the wake of yesterday’s ruling in the D.C. Circuit that the FCC had exceeded its authority in attempting to regulate access to the Internet, I did a number of radio interviews and a radio debate with Derek Turner of Free Press, a leading advocate of Internet regulation.

The debate was a brief, fair exchange of views. I was struck, though, to hear Turner refer to the situation as a “crisis.” Sure enough, in a Free Press release, Turner says three times that the ruling creates a “crisis.”

Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.

In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.

Wow. With crises like these, who needs tranquility?

“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.

That would be worrisome, though still not much of a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.

As Tim Lee points out in his paper, “The Durable Internet,” consumer pressures are likely in almost all cases to rein in undesirable ISP practices. Computer scientist Lee presents examples of how ownership of communications platforms does not imply control. If an ISP persists in maintaining a harmful practice contrary to consumer demand—and consumers can’t express their desires by switching to another service—we can talk then.

In the meantime, this “crisis” has me slightly drowsy and eager to go outside and enjoy the spring weather.

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The FCC Lacks Jurisdiction over “Neutrality” Rules

by on April 6, 2010 · 2 Comments

(Adam beat me to the punch (he’s on East Coast time, after all), but I wanted to make a few preliminary remarks about the FCC loss today anyway.)

The D.C. Circuit Court of Appeals issued its opinion today in Comcast’s appeal of sanctions issued in 2008, rejecting the FCC’s authority to issue the sanctions in the first place.  (Brent Kendall of The Wall Street Journal has already reported the story, see “Court Strikes at Net Neutrality.”)

The ruling punished the cable company’s efforts to throttle peer-to-peer traffic over its network of some customers using the BitTorrent application, a network management principle the FCC said violated its “policy” on open and transparent Internet or “net neutrality.”   Since Comcast agreed to more subtle forms of traffic management and to make such decisions more transparent, the FCC left them with a slap on the wrist.  Comcast appealed nonetheless.  (Appeals of FCC adjudications go directly to the D.C. Circuit.)

I’ve read through the court’s 36-page opinion, which will serve as an important marker in the “net neutrality” debate.  It largely follows the harsh line of questioning taken during the oral arguments for the case back in January, where the panel challenged the FCC to identify a specific statutory provision that gave them authority to impose the neutrality principles—in this case, in an adjudication that Comcast had failed to follow the rules.

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FCC Loses Comcast Case: End of Line for FCC’s Creative Claims of Authority?

by on April 6, 2010 · 1 Comment

The decision in Comcast v. FCC is out and it’s a resounding defeat for the Federal Communications Commission and the agency’s creative interpretations of “ancillary jurisdiction.”  The U.S. Court of Appeals for the District of Columbia just wasn’t buying the FCC’s claim that it had “ancillary jurisdiction” to enforce amorphous policy principles against Comcast under past case law or, more amazingly, via some deregulatory-minded passages from the Telecommunications Act of 1996. [For all the background on this case and the definitive refutation of the agency’s jurisdictional assertions, see this paper and this filing by my colleague Barbara Esbin. Barbara practically wrote the script for the Court’s decision today through her meticulous debunking of each of the agency’s creative theories of law.]

I’m just working my way through the decision for a second time and will likely have more to say about it in coming days, but I just had to reprint this one passage from the decision on pg. 23-4, in which the Court notes that the FCC is basically asking for “anything goes” authority over all networks and the Internet:

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Broadband is great but, magical? really?

by on April 5, 2010 · Add a Comment

The city of Bellingham, Washington lies close to the Canadian border. It is a sleep town of 70,000 or so with a decent sized University, a pleasant waterfront and charming downtown. (Full disclosure, the author attended said University a decade ago)

The town’s motto is, “the city of subdued excitement,” something that probably better fits a description of this author than the town, but whatever.

I did, however, get a kick out of the video that city leaders spent $5K putting together to accompany the Google fiber rollout project application. I love a good broadband connection as much as the next guy, but the video, while done in a very professional manner, made my hair stand up on end. For one thing, Bellingham has good broadband networks, including Clear’s WiMax, numerous coffee shops with complimentary WiFi, a networked university system, etc. We’re not dealing with backwood hicks here or stone-cobbled streets.

But I suppose a video looks less desperate than changing the name of your city.

Google Fiber: Put the G in Bellingham

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Free Press & Public Knowledge Try to Invent Regulatory Crisis over Sprint Short Codes

by on March 28, 2010 · 6 Comments

John Schwartz of The New York Times called me two weeks ago and asked for comment about a potential controversy involving mobile phone provider Sprint and the charitable organization Catholic Relief Services (CRS). The facts were pretty sketchy at the time, but Schwartz told me that CRS was accusing Sprint of blocking Mobile Commons, the company that connects CRS and 100 other nonprofit organizations with text messaging networks, from getting a short code to create a charitable mobile donation program in the wake of the Haiti earthquake. Here’s the basic background that appeared in Schwartz’s March 24th article, “Catholic Charity and Sprint Tangle Over Texting“:

[CRS] wanted to try a twist on the technology: when people sent a text message to donate, they got a reply offering to connect them via phone to the charity’s call center. The group hoped that the calls could build a stronger bond with donors, and garner larger contributions as well. But just three days into the effort after the Jan. 12 earthquake, the charity got word that Sprint Nextel was demanding that the “text-to-call” effort be shut down. The charity had 40 days to abandon the feature or lose access to millions of Sprint customers.  Sprint’s original motivations are murky; it said that an intermediary company had failed to properly fill out a form to verify that it was dealing with a legitimate charity.

It didn’t take long for the regulatory activists at Free Press and Public Knowledge to pounce and claim the Federal Communications Commission (FCC) had to intervene to save our souls from the nefarious scum at Sprint. After all, you do know that Sprint hates Haitians, right?  The company obviously wanted to see Haitians starve and not receive any support from charitable organizations.

No, seriously, come on!  How asinine is this storyline?! Continue reading →

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Verizon’s Tom Tauke Calls for Congressional Overhaul of Telecom Act; New Regime

by on March 24, 2010 · 2 Comments

Noting that the Telecom Act has become ” irrelevant to the ecosystem that has developed,” Verizon’s Executive Vice President Tom Tauke today called for Congress to overhaul the nation’s archaic communications laws and the regulatory regime that the Federal Communications Commission (FCC) is currently attempting to pigeonhole the Internet and entire Digital Economy into.  It’s an excellent speech, and I encourage you to read the entire thing (which I have embedded down below the fold in a Scribd reader).

“[T]he test for government intervention in the marketplace is to prevent either harm to users or anti-competitive activity,” he said. He rightly noted that, in an age of technological convergence and vigorous cross-platform competition, the old silo-based approach of the Telecom Act — with its various Titles for outmoded market definitions — no longer makes any sense. He noted:

by the very nature of the Internet Ecosystem, many are working together or competing in other company’s turf. Computer companies sell phones, and quite successfully. Search engines sell open operating systems. Network providers create their own apps stores. That means that the value proposition to the consumer is really a package created by many companies acting together with little, if any, regard to their previous corporate histories. So no set of companies should be immune from scrutiny.

Of course, a regulatory regime already exists that accomplishes this goal: antitrust law. But Tauke’s proposal isn’t quite that sweeping. He doesn’t call for the FCC to be dynamited the ground and to just shift everything into the antitrust bucket, which some of us would prefer. Instead, he speaks generically about the need for a more sensible process — most likely still enforced by the FCC — that would work as follows:

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WaPo Slaps the “The FCC’s visible hand”

by on March 21, 2010 · 1 Comment

Great op/ed in The Washington Post today:

BY THE Federal Communications Commission’s own account, broadband use in the United States has exploded over the past decade: “Fueled primarily by private sector investment and innovation, the American broadband ecosystem has evolved rapidly. The number of Americans who have broadband at home has grown from eight million in 2000 to nearly 200 million last year.”

So it is curious that the FCC’s newly released National Broadband Plan faults the market for failing to “bring the power and promise of broadband to us all” — in reality, some 7 million households unable to get broadband because it is not offered in their areas. Such an assessment — and the call for government intervention to subsidize service for rural or poor communities — is premature, at best

Read the rest here or check out Adam’s appearance on C-SPAN’s Washington Journal or on the Diane Rehm Show.

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