FCC May Tweak Broadband Plan After Comcast Ruling
ARTICLE DATE: 04.09.10
By Chloe Albanesius
Despite a recent ruling that said the Federal Communications Commission did not have the right to interfere in Comcast's network management issues, the agency is pushing ahead with its national broadband plan, though there might be some tweaks.
"Does the FCC still have a mission in the Internet area? Absolutely," Austin Schlick, general counsel for the FCC, wrote in a blog post. "The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet."
The court did, however, say that the FCC lacked the authority to hand down a 2008 enforcement action against Comcast. The commission, under former chairman Kevin Martin, found that Comcast used unreasonable network management when it blocked access to P2P sites like BitTorrent and ordered the company to be more transparent about its policies. Comcast agreed to do that, but appealed the decision anyway because, it argued, the FCC did not have the right to issue orders on the issue.
Why? Well, the FCC based its decision on its Internet Policy Principles, a set of guidelines the agency developed internally several years ago regarding broadband Internet service. But because they are simply policies developed internally by the FCC and not actual rules that went through a formal, open rulemaking process, Comcast argued that they are invalid, as is the enforcement action.
This week, an appeals court agreed, and invalidated the FCC's actions.
In the wake of this decision, many wondered what this meant for the FCC's much-publicized broadband plan, as well as their ongoing rulemaking on net neutrality. If the FCC has on authority to handle network management issues, do they have the authority to handle broadband or net neutrality issues?
Yes, according to the FCC. Congress ordered the commission to develop the national broadband plan, so the FCC has been granted authority to address that issue, Schlick said.
"The Comcast/BitTorrent opinion has no effect at all on most of the plan," Schlick wrote. "Many of the recommendations for the FCC itself involve matters over which the commission has an 'express statutory delegation of authority.' These include critical projects such as making spectrum available for broadband uses, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better broadband data, unleashing competition and innovation in smart video devices, and developing common standards for public safety networks."
Those thoughts were echoed by FCC Chairman Julius Genachowski.
"The court decision earlier this week does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals," Genachowski said. "The court did not question the FCC's goals; it merely invalidated one technical, legal mechanism for broadband policy chosen by prior commissions."
Schlick did acknowledge, however, that the court's decision "may affect a significant number of important plan recommendations."
That includes: recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cyber security; consumer protection, including transparency and disclosure; and consumer privacy.
"The commission must have a sound legal basis for implementing each of these recommendations," Schlick said. "We are assessing the implications of [the] decision for each one, to ensure that the commission has adequate authority to execute the mission laid out in the plan."
In the meantime, the FCC is moving forward on some aspects of the plan. One section called for Internet service providers to be more transparent about how well their broadband service actually works. The FCC has already released a broadband testing tool on broadband.gov for consumers to test their Internet speeds at home, but now the commission is now partnering with SamKnows Limited for a more in-depth look.
SamKnows will measure broadband performance in about 10,000 homes to "scientifically understand broadband performance across America," the FCC said.
"In a couple of weeks, we will be asking for consumers from across the country to voluntarily install hardware in their homes (on an opt-in basis) that is capable of measuring broadband performance," FCC economic advisor Dave Vorhaus, wrote in a separate blog post. "The measurements will give us results across a broad swath of providers, service tiers and geographic areas."
More details about volunteering will be posted in the next several weeks, he said, and the FCC will also release a public notice with details about SamKnows' technical approach and methodology.
In addition, the FCC this week released broadband-related goals it wishes to accomplish this year. The national broadband plan includes recommendations that need to be carried out over the next 10 years, but this year, the FCC will focus on mobile broadband, broadband for national purposes like healthcare and education, competition, and the public safety network.
On net neutrality, meanwhile, the FCC has again extended the public comment period – this time from April 8 to April 26. The rulemaking would essentially require ISPs to use reasonable network management and not block specific applications. It would also make those Internet Policy Principles actual FCC rules, a move that might actually give the commission the authority the court said it currently lacks.
Comcast has not said much beyond its initial statement, which said the company was "gratified" by the court's decision and pursued the issue to "clear our name and reputation."
ARTICLE DATE: 04.09.10
By Chloe Albanesius
Despite a recent ruling that said the Federal Communications Commission did not have the right to interfere in Comcast's network management issues, the agency is pushing ahead with its national broadband plan, though there might be some tweaks.
"Does the FCC still have a mission in the Internet area? Absolutely," Austin Schlick, general counsel for the FCC, wrote in a blog post. "The Court did not adopt the view that the Commission lacks authority to protect the openness of the Internet."
The court did, however, say that the FCC lacked the authority to hand down a 2008 enforcement action against Comcast. The commission, under former chairman Kevin Martin, found that Comcast used unreasonable network management when it blocked access to P2P sites like BitTorrent and ordered the company to be more transparent about its policies. Comcast agreed to do that, but appealed the decision anyway because, it argued, the FCC did not have the right to issue orders on the issue.
Why? Well, the FCC based its decision on its Internet Policy Principles, a set of guidelines the agency developed internally several years ago regarding broadband Internet service. But because they are simply policies developed internally by the FCC and not actual rules that went through a formal, open rulemaking process, Comcast argued that they are invalid, as is the enforcement action.
This week, an appeals court agreed, and invalidated the FCC's actions.
In the wake of this decision, many wondered what this meant for the FCC's much-publicized broadband plan, as well as their ongoing rulemaking on net neutrality. If the FCC has on authority to handle network management issues, do they have the authority to handle broadband or net neutrality issues?
Yes, according to the FCC. Congress ordered the commission to develop the national broadband plan, so the FCC has been granted authority to address that issue, Schlick said.
"The Comcast/BitTorrent opinion has no effect at all on most of the plan," Schlick wrote. "Many of the recommendations for the FCC itself involve matters over which the commission has an 'express statutory delegation of authority.' These include critical projects such as making spectrum available for broadband uses, improving the efficiency of wireless systems, bolstering the use of broadband in schools, improving coordination with Native American governments to promote broadband, collecting better broadband data, unleashing competition and innovation in smart video devices, and developing common standards for public safety networks."
Those thoughts were echoed by FCC Chairman Julius Genachowski.
"The court decision earlier this week does not change our broadband policy goals, or the ultimate authority of the FCC to act to achieve those goals," Genachowski said. "The court did not question the FCC's goals; it merely invalidated one technical, legal mechanism for broadband policy chosen by prior commissions."
Schlick did acknowledge, however, that the court's decision "may affect a significant number of important plan recommendations."
That includes: recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cyber security; consumer protection, including transparency and disclosure; and consumer privacy.
"The commission must have a sound legal basis for implementing each of these recommendations," Schlick said. "We are assessing the implications of [the] decision for each one, to ensure that the commission has adequate authority to execute the mission laid out in the plan."
In the meantime, the FCC is moving forward on some aspects of the plan. One section called for Internet service providers to be more transparent about how well their broadband service actually works. The FCC has already released a broadband testing tool on broadband.gov for consumers to test their Internet speeds at home, but now the commission is now partnering with SamKnows Limited for a more in-depth look.
SamKnows will measure broadband performance in about 10,000 homes to "scientifically understand broadband performance across America," the FCC said.
"In a couple of weeks, we will be asking for consumers from across the country to voluntarily install hardware in their homes (on an opt-in basis) that is capable of measuring broadband performance," FCC economic advisor Dave Vorhaus, wrote in a separate blog post. "The measurements will give us results across a broad swath of providers, service tiers and geographic areas."
More details about volunteering will be posted in the next several weeks, he said, and the FCC will also release a public notice with details about SamKnows' technical approach and methodology.
In addition, the FCC this week released broadband-related goals it wishes to accomplish this year. The national broadband plan includes recommendations that need to be carried out over the next 10 years, but this year, the FCC will focus on mobile broadband, broadband for national purposes like healthcare and education, competition, and the public safety network.
On net neutrality, meanwhile, the FCC has again extended the public comment period – this time from April 8 to April 26. The rulemaking would essentially require ISPs to use reasonable network management and not block specific applications. It would also make those Internet Policy Principles actual FCC rules, a move that might actually give the commission the authority the court said it currently lacks.
Comcast has not said much beyond its initial statement, which said the company was "gratified" by the court's decision and pursued the issue to "clear our name and reputation."
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