Support Dims for FCC Chairman’s Open Internet Proposal

WASHINGTON, December 21, 2010 – Federal Communications Commission Chairman Julius Genachowski on Dec. 1 announced that there would be a set of open internet rules that his agency would vote on during its open meeting on Dec. 21. While many stakeholders in the debate initially  were happy to learn that the chairman would finally bring the issue to a vote, support dimmed after learning what he planned to include in the rules.

It was a little over a year ago when, after weeks of speculation, the FCC finally issued a notice of proposed rulemaking to explore the issue of network neutrality. Earlier that year, a court decision ruling that the FCC couldn’t regulate the speeds at which Comcast choose to deliver content through its networks cast a pall of uncertainty over the power of the FCC to enforce potential network neutrality violations. After weeks of study and meetings, the FCC chairman announced his now famous Third Way proposal. The Third Way sought a middle ground between what some saw as the overreaching provisions of Title II and the weak Title I authority.

The chairman spent the spring selling his Third Way proposal and it gained support among network neutrality advocates. Public Knowledge Founder Gigi Sohn said in in a statement that, “The ‘Third Way’ would establish a firmer legal foundation, not only for open internet rules but also for broadband policy generally. We urge the commission to conclude the proceeding and adopt the ‘Third Way’ proposal at a future meeting.”

The chairman spent the summer trying to gain consensus among internet service providers and content makers, but failed. The secret meetings not only failed to produce any real solution but it garnered serious criticism from telecom advocates who felt that the commission should make the meetings public.

As the FCC was holding its secret meetings, Rep. Henry Waxman of California, chairman of the House Committee on Energy and Commerce, drafted a bill that would have strengthened Title I to allow the FCC to enforce network neutrality. Additionally, the bill specifically defined network neutrality, included a sunshine provision on broadband billing, and extended the neutrality requirements to wireless providers. The bill was never able to pass the House due to strong opposition from Republicans.

Then there was the accusation by Level3, a backbone provider and new content delivery network, that Comcast was demanding more money to carry video content. In November, the commission had decided to hold its open meeting late in the month, an action that many thought was a sign that its members would finally rule on the open internet but now that a real threat to network neutrality had occurred, the need for FCC action became accelerated.

The commission vowed to look into the matter and the chairman gave a speech outlining some of the key points in the open internet rules. The announcement included the standard requirements such as allowing users the right to access legal content of their choice, and allowing ISPs to conduct reasonable management to ensure network stability but it also included some unexpected provisions. One of these provisions is a clause requiring ISPs to present contract information clearly to consumers.

A recent white paper on broadband satisfaction found that many consumers are still confused by the language and presentation on their bills. Only 24 percent said the information on their bill was very clear on the speed of their internet service.

The provision allowing for usage-based pricing has received some objections but not many.

The majority of the objections to these proposed rules come from those that believe that they are not strong enough to stand up to judicial review. The groups also felt that without reclassifying broadband and using Title II jurisdiction, the commission would face strong legal opposition.

Additionally, many groups also wanted the rules to extend to wireless providers. Among the parties objecting to these new rules on the ground that they do not go far enough are Netflix, Public Knowledge, Free Press, Skype and Amazon.

The largest source of disagreement between former supporters and the new rules is that the new rules do not prevent paid prioritization, which allows ISPs to demand content makers pay for service on their networks.

ISPs in general also oppose the action claiming that the FCC does not have the authority nor do they need to act since violations do not occur. AT&T said these new provisions would inhibit innovation and investment.

Wired provider Windstream said, however, that any rules which will be applied to wired networks need to also be applied to the wireless realm: “Stricter regulation of wired broadband services will distort the competitive marketplace, and the alleged differences between wired and wireless networks are at most matters of degree, not kind, and do not justify placing the technologies under different regulatory standards.”

There is some support for the new rules such as that from the National Association of Regulatory Utility Commissioners, which stated: “NARUC is on record supporting the uniform adoption of all six regulatory principles outlined in the FCC’s October 22, 2009 Notice of Proposed Rulemaking on a technology-neutral basis.

“If the language of the draft is subject to such a preemptive interpretation with respect to state authority to assist the FCC to fulfill clear congressional mandates to protect consumers or promote universal  service with respect to broadband or related voice services, the FCC should include an explicit statement  or statements that the draft is not addressing such issues nor should it be used to imply preemption of  any existing state authority.”

The FCC commissioners are also split on the new draft rules. Expectedly, Republican Commissioners Robert McDowell and Meredith Atwell Baker oppose the order on principle. Commissioner Michael Copps, an ardent supporter of network neutrality, is on the fence. While he supports the concept, he believes that any action taken by the FCC should be a strong one and that the rules which have been announced are too weak. Commissioner Mignon Clyburn’s statement regarding the draft rules is vague but generally supportive.

Democratic Sens. John Kerry of Massachusetts, Byron Dorgan of North Dakota and Ron Wyden of Oregon sent letters of support to the chairman for his ideas, but Sen. Al Franken of Minnesota believes that if the FCC will act, it must use a strong hand and not approve a weak set of rules. In a letter to the FCC, Franken says “absent significant changes to the draft Order as it has been described to me, adopting these rules as they are may actually send signals to industry endorsing any closing off of the Internet that is not specifically prohibited.”