FCC’s Action on Open Internet Rules

We haven’t commented on the biggest buzz in DC in tech policy until now since there’s not much to say about it from a technical perspective until we have the text of the proposed rules, but people are asking for an analysis so here you go. This subject has been bouncing back and forth between non-issue and crisis since Congress discovered it in 2006, as everyone with even a passing interest in Internet policy knows. The recent action was a speech by FCC Chairman Genachowski to the effect that he was going to place the matter on the agenda for the December 21st meeting. We’re reading the tea leaves on what the rules will say still, but he did give some indications in his speech about some of the key points, which I covered in a press statement for ITIF:

FCC Chairman Julius Genachowki unveiled the main elements of a very sensible Open Internet framework in his speech at the FCC today. We believe the Chairman’s plan will be broadly supported, and for good reasons. We also believe the plan will help tamp down the often acrimonious controversy over how to best oversee the development of the Internet, establish regulatory clarity, and promote investment in faster and more pervasive broadband networks.

In general terms, the framework strikes all the right notes:

  1. The framework recognizes that transparency is the single most important regulatory principle that can be applied to Internet service agreements today, as it goes much farther than any other single tool to ensure that customers are getting the experience that they reasonably expect.
  2. The framework enshrines the Four Freedoms articulated by Chairman Powell and long accepted as policy by the FCC.
  3. The framework emphasizes a sensible “level playing field” approach over the rather strident “anti-discrimination rule” that some advocates have urged on the Commission. A level playing field approach ensures that applications which require either premium service or discount service can get what they need from network operators to be successful.
  4. The framework recognizes that mobile broadband is less mature and less resilient that fixed, wireline broadband, and seeks to make allowances for the state of its development through greater flexibility on the part of network operators.

The framework avoids the unnecessary and unproductive use of the Title II “nuclear option” which would not have been helpful in any case regarding the alleged violations of Open Internet principles we’ve seen in the past.

We applaud the Chairman’s tenacity and his commitment to a consultative process, and we eagerly await the text of the framework.

One thing that all the parties to the dispute can agree on is that this issue needs to be resolved one way or the other, and the FCC’s action points to a resolution if it does nothing else. The time and energy that’s been expended on it in Washington as well as in America’s board rooms could have been better spent implementing the National Broadband Plan, reforming Universal Service, developing an Internet privacy policy, finding the right balance between digital rights and free expression, or freeing up more spectrum for the mobile Internet, but all of these initiatives have been blocked by the concern about net neutrality to a greater or a lesser extent.

The questions about FCC authority will not be fully resolved until Congress takes some action, and very few members of the House want to be remembered by history for being the first American legislators to “regulate the Internet.” So the FCC has to take this sort of action in order to stimulate Congress to clarify American Internet policy. At some point in a process like this one, any decision that’s roughly correct is better than no decision. Instead of muddling along, we need some clarity, if for no other reason than the fact that the boundaries of net neutrality seem to be expanding faster than the rest of the known universe. In the past few weeks, net neutrality has been applied to the retransmission dispute between Cablevision and Fox Broadcasting, to a modem certification beef between Zoom and Comcast, and even to an Internet peering dispute between Level (3) and Comcast again. Instead of crying “fire!”, everyone in the telecom and networking business who wants some attention these days claims a net neutrality violation.

This has gotten totally out of hand and needs to be stopped. The best way to do this is to enact a consensus framework like the one that emerged in the Waxman Bill just before the election. That bill moved the ball forward by taking an economic approach to the nasty anti-discrimination rule rather than the faux-technical one that some advocates with little knowledge of networking have been pushing.  Nobody is happy with the bill, but nobody but the most extreme elements are all that unhappy with it either. I think a bill like that can pass a divided Congress, and frankly any measure of that sort that doesn’t have bipartisan and bicameral support isn’t worth having.

So we’re looking a classic political compromise, and it’s about time.