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Posted at 12:01 AM ET, 12/ 1/2010

FCC chair announces net neutrality push without re-asserting role over broadband Internet

By Cecilia Kang

The chairman of the Federal Communications Commission plans to announce Wednesday a controversial proposal that would prohibit Internet providers from favoring or discriminating against any traffic that goes over their networks.

FCC Chairman Julius Genachowski would do so, however, without resorting to a more drastic step of changing the way the FCC regulates broadband providers that would have more clearly asserted the government’s authority over Internet access.

In a statement provided to reporters in advance of Wednesday’s announcement, Genachowski said he thinks he has “a sound legal basis” to pursue so-called net-neutrality rules that would prevent companies such as Verizon, Comcast and AT&T from blocking or serving up some Web sites faster and at better quality than others.

Last summer, Genachowski said he would move to reclassify broadband as something akin to more heavily regulated telephone service, after a federal appeals court threw the government’s position as Web access regulator into question. The court said in April that the FCC had no legal authority to sanction Comcast for blocking files shared through the BitTorrent application.

Broadband companies strongly resisted being reclassified, and now Genachowski has shifted his approach.

“Informed by the staff’s additional legal analysis and the extensive comments on this issue over the past year, the proposal is grounded in a variety of provisions of the communications laws, but would not reclassify broadband,” Genachowski said.

Telecom lawyers and public interest groups have argued that without redefining its role over Internet service providers, the FCC’s ability to carry out broadband rules is weakened. That suggests that the proposal Genachowski plans to announce Wednesday could still wind up being challenged in courts.

Genachowski’s proposal also goes against warnings by emboldened Republican lawmakers who have criticized such rules as anti-business.

The proposal will be introduced for a vote before the five-member commission on Dec. 21.

But trying to make good on a promise for such rules made more than a year ago, Genachowski's proposal appears to strike a compromise between the interests of big network giants such as Verizon Communications and Web giants such as Google and Amazon. The Web companies have urged the FCC to oversee network operators so they don’t favor some sites and applications — including their own and those of partners — over others. It gives carriers more leeway in pricing of services, allowing for teired data plans.

The proposal bars the operators of broadband lines into homes from blocking Web sites, applications or any devices that attach to their networks. It would also prevent carriers from “unreasonable discrimination” that would, for example, serve up Comcast’s Internet video service Xfinity faster and at better quality than that of rival Netflix.

For wireless networks, the rules are weaker. Mobile carriers such as Sprint Nextel, AT&T and T-Mobile would be prohibited from blocking competing voice and video applications such as Skype, Google Voice or Slingplayer. But wireless providers wouldn’t have the same rules against prioritizing certain applications and sites on their networks like cable and telecom firms.

“Mobile broadband is at an earlier stage of development than fixed broadband, and is evolving rapidly,” Genachowski said.

Public interest group Free Press expressed disappointment that the rules were not stronger and equal for fixed-line Internet and wireless networks. And the group has urged the FCC to re-assert its broadband authority.

"By not restoring the FCC's authority, Chairman Genachowski is unnecessarily placing his net neutrality agenda, and indeed his entire broadband agenda, at risk," said Free Press executive director Josh Silver.

Genachowski said in his prepared remarks that his proposal doesn't "preclude action by Congress" and that he would work with lawmakers to update communications law to clarify the federal oversight of broadband networks.

The Communications Workers of America labor union urged the five-member commission to approve the proposal, saying Genachowski's push for more than one year has been a distraction.

"The buildout of true 21st century broadband networks has been stalled over the net neutrality debate," said Larry Cohen, president of CWA. "It's critical that we end the gridlock and shift our focus to the investment that will allow the United States to catch up with the rest of the world."

By Cecilia Kang  | December 1, 2010; 12:01 AM ET
Categories:  AT&T, Broadband, Comcast, Consumers, FCC, Google, Net Neutrality, Sprint Nextel, T-Mobile, Verizon  
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The FCC does not have the authority to regulate broadband. It appears that it is going to try a tortured interpretation of certain provisions of the law, but Congress made its intent crystal clear and so made this moot. The law says, at 47 USC 230(b):

It is the policy of the United States—

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

This is absolutely unambiguous. While a statement of policy isn't law, it guides interpretation of the law, and overrides any wild interpretation that the FCC might try. We're in for years of pointless lawsuits as the FCC tries, and fails, to grab power that Congress - as representatives of the people - did not give it.

Of course, Cecilia Kang - Google's Reporter and Network Neutrality Lobbyist at The Post - did not mention any of this, as a responsible journalist would have done.

Posted by: LBrettGlass | December 1, 2010 12:32 AM | Report abuse

@LBrettGlass - Are you saying that "the people" actually WANT broadband pipe owners to be able to prioritize content at their discretion? Are you saying that allowing content providers—some of whom are state-sanctioned local monopolies—the ability to prioritize data somehow contributes to the vibrancy and competition of the internet rather than stifle it? I would love to see where, exactly, you see the disconnect between net neutrality and keeping a level playing field.

Even assuming arguendo, if you want to grant companies like Comcast et al the right to offer prioritized content, wouldn't it be misleading to characterize that as being provided access to what will invariably be tauted as "the internet?" At its most basic level, internet content is restricted only by the size of the pipes, the amount of data being transferred, and the robustness of the computers involved. If a company adopts a role as profit-oriented and content-discriminatory gatekeeper, saying they are providing access to "the internet" writ large is entirely misleading. If a company like Cablevision wants to sell consumers Optimum Online, and then clearly differentiates it from being full-spectrum access to the internet per se, then there might be room for debate. However, providers are trying to change the market on their own terms—and as such, stifle the very notions of vibrancy and competition you're allegedly espousing.

Posted by: andrewmochulsky | December 1, 2010 8:49 AM | Report abuse

The partisan deadlock between Congress that has been witnessed for a few years now precludes the power the Congress can have and "as representatives of the people", this means that they cannot seem to generate law that keeps up with the needs based on technological advancement OR corporate greed. This is why the FCC should have the power as the people have little alternative to protect their interests in net neutrality as witnessed with corporations wanting, and demonstrating, to control how the net works.

Posted by: metoo5 | December 1, 2010 8:51 AM | Report abuse

If you follow the comments made by those at Free Press and by those who work and has worked at the FCC, it is vary clear that Net Neutrality is not about protection of free speech and fairness, but an agenda to suppress Free enterprise and propagate government control over a free and open portal of expression. Controlling this global network is vital to governments to control ideologies and promote nationalism in the best interest of those in power. Unlike freedom of press where government is not controlling what newspaper release but government knows that the Internet will replace news press.

Posted by: mikecallahan-1 | December 1, 2010 9:37 AM | Report abuse

I've been a tech entrepreneur and then a venture capitalist my entire career, and I've studied this issue closely, because it is so important for the technology start-up community. I applaud this approach by Chairman Genachowski. It is practical, it is reasonable, and it accomplishes exactly what we all need accomplished. I believe the entrepreneurial community will embrace this framework, building their businesses with much more confidence that the playing field is level, unreasonable discrimination will not be tolerated, and that transparency will allow the FCC to take further action if necessary to protect a landscape of fair competition. This allows the FCC to be the cop on the beat, making sure that companies of all sizes/ages/etc have the same ability to thrive as established companies, without fear of unfair competition. I urge you to consider this proposal carefully, and show support so this can get passed.

Posted by: jedkatz | December 1, 2010 9:53 AM | Report abuse

The FCC should regulate the Internet. The Internet is telecommunications.

The Internet is just like telephone lines. We (the users) dial a number (IP address) of the website we are interested in seeing. Phone #'s look like (607)667-9999. IP addresses look like 234.354.354.345. We the users have the right to dial (search) any number (website) we see fit and have a quality connection unrestricted based on what we choose to find.

Who will pay for it is a stupid question because the American tax payer already did pay for it.

Remember, the Internet as we know it today was created by the US Government with the High Speed Computing and Communications Act of 1991. Until 1993 the National Science Foundation (NSF) owned and operated the commercial Internet. In 1993 control of the Internet was leased to the original telcos (AT&T, MCI, Pacific Bell, Bell Atlantic) with the understanding that the Internet be operated in the public interest.

The FCC absolutely needs to determine if the public interest is being served by the current Internet environment where home users and businesses typically have a choice of one carrier or cable company, no competition. If the telcos are not serving the public interest, then the NSF should take back control of the Internet, or lease control to a group or organization that would operate the Internet in a way that is fair to all.

Faster networks are going to cost more and when the ISP's build them we (the consumers) will be floating the bill. We all know the ISP's are going to get tax $$ for upgrades. The ISP's crying about this is just a smoke screen. In most other countries they have giga-bite speed service and pay the same as we do.

When we order internet service, the service is described to us as "52Mb per second" or something like that.

If the user decided to use their bandwidth for phone calls that's their prerogative. The user downloading with bit torrent or the like will still be limited to the bandwidth they subscribed for. If the network is saturated, I expect my VoIP to be useless - along with a lot of other things. Within my private network, I can establish QoS standards, but those standards are not ubiquitous by any means on the public Internet. If an ISP believes it needs to implement traffic shaping because they lack sufficient capacity, then the answer is not to implement traffic shaping, but to add more capacity.

The FCC should definitely regulate the Internet.

Posted by: getcentered | December 1, 2010 9:57 AM | Report abuse

If you look at how the companies line up on this issue, it's the big 3 cable monopolies, AT&T and Verizon who want to be able to discriminate against content providers who compete. If they were not defacto monopolies, this wouldn't be an issue. But since they are defacto monopolies with such enormous market share, and even higher barriers to entry to compete, this does become an issue. The FCC must be allowed to assert itself to defend the public interest. Write your lawmakers and demand they provide the FCC the unfettered ability to protect your interests.

Posted by: nihao1 | December 1, 2010 10:02 AM | Report abuse

I've got a GREAT idea...

Let the American people vote.

The FCC is full of Lobbyists, Cronies and Corrupt Lawyers - They have no business voting - We did not elect them - they are political appointments.

Posted by: btrask3 | December 1, 2010 10:06 AM | Report abuse

I've got a GREAT idea...

Let the American people vote.

The FCC is full of Lobbyists, Cronies and Corrupt Lawyers - They have no business voting - We did not elect them - they are political appointments.

Posted by: btrask3 | December 1, 2010 10:06 AM | Report abuse

Lets be clear about this. The US government does not own Americans. The US government does not own the interstate, the military, National wildlife refuges, nor freedom of speech including the Internet. Americans own the government. What is happening to the ideology of American Liberty?

Posted by: mikecallahan-1 | December 1, 2010 10:36 AM | Report abuse

Government will and has all trough history corrupted itself. Giving ultimate power to a regulatory commission outside of representative government is NOT Liberty! Especially if the regulatory entity has power to regulate freedom of expression. Please read the comments of the founder of Free Press made addressing the Canadian media outlet called The Bullet. This will explain the reason behind Net Neutrality and the engineering there of.

Posted by: mikecallahan-1 | December 1, 2010 10:54 AM | Report abuse

LOL, the FCC is about as useless as the TSA!

Posted by: clermontpc | December 1, 2010 11:09 AM | Report abuse

Don't underestimate the power of the Federal Government. This government places a pay freeze on its branches yet not Congress and the president. Power corrupts, always has and always will.

Posted by: mikecallahan-1 | December 1, 2010 12:19 PM | Report abuse

@mikecallahan-1 - Please, if you would, demonstrate in no uncertain terms—without simply linking to a third party website (heaven help us if, in a prioritized content world, you linked to a site that wasn't a business partner of your ISP!)—how an attempt to adopt net neutrality somehow infringes on our personal liberties. Net neutrality does not erode First Amendment protections (unless somehow one is able to concoct the extremely attenuated argument that internet service providers colluding against non-partner web sites and services somehow constitutes "speech"), and only the most paranoid and reactionary among us would even leap to that conclusion. People may have misgivings about the role of government, and that is fine on its face; however, having such fears permeate what should be a rational discussion about the intersection of business, government, the flow of information, and no-longer-nascent technologies that have since escaped oversight.

Posted by: andrewmochulsky | December 1, 2010 2:43 PM | Report abuse

I am a proponent for Net Neutrality since I don't think providers should be able to prioritize traffic especially since most of the internet providers also offer TV service causing a conflict of interest.

I take issue with the tiered pricing since that gives the cable operators the ability to charge unreasonable prices for bandwidth and speed levels required to stream video. This would make it unattractive to subscribe to a streaming service making people prefer the cable services.

For example, Comcast could start charging $79.99 for 10Mpbs and 200MB per month which would make it much more expensive to get a service such as Netflix. This is just as bad as prioritizing traffic.

Posted by: jmrodri | December 1, 2010 2:55 PM | Report abuse

This topic really interests me, but for the life of me, i cannot find an actual link to the "supposed" framework. Anybody know where I can read it and not just read ABOUT it.

Posted by: manicsquirrel | December 1, 2010 6:03 PM | Report abuse

Oh, but "manicsquirrel," the FCC never releases the actual text on which it votes prior to the vote. The FCC issued a "Notice of Proposed Rule Making" a long time ago, but it is not bound to keep a word of the original text. In fact, it usually doesn't release the final text until several days AFTER the vote. What's more, it grants its staff "editorial privileges," which means that the staffers can throw in words that weren't even seen by the Commissioners when they voted on the rules! And, as I'm sure you are aware, a few words can make a huge difference.

What, you say? You're a citizen and are entitled to know what your government is up to? Or not to have your life impacted by unelected, unaccountable bureaucrats? Don't be silly. If that were the case, we'd have a democracy or something.

Posted by: LBrettGlass | December 1, 2010 9:47 PM | Report abuse

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