FCC launches new net neutrality probe

Dark words fly as FCC launches new net neutrality probe
By Matthew Lasar
 

The Federal Communications Commission hasn't even formally proposed its new "Third Way" net neutrality rules. All it did on Thursday was open an inquiry about them. But already we're on the edge of catastrophe, judging from the comments from the bench at the agency's Open Commission meeting.

If the agency goes this route, "we will have lost the moral high ground," suggested Republican Commissioner Robert M. McDowell. "For decades now, the international consensus has been for governments to keep their hands off the Internet and to leave Internet governance decisions to time-tested nongovernmental technical groups. Once that precedent is broken, it will become harder to make the case against more nefarious states that are meddling with the Internet in even more extensive ways than are contemplated here."

Yikes! What does that mean? Is the Commission indirectly appeasing Iran and China by even thinking about Internet nondiscrimination rules? But au contraire, declared Democratic Commissioner Michael Copps. This probe must go forward despite the opposition.

"I, for one, am worried about relying only on the goodwill of a few powerful companies to achieve this country’s broadband hopes and dreams," he darkly warned. "We see what price can be paid when critical industries operate with unfettered control and without reasonable and meaningful oversight. Look no further than the banking industry's role in precipitating the recent financial meltdown or turn on your TV and watch what is taking place right now in the Gulf of Mexico."

So if you oppose net neutrality, you're no better than the company responsible for all those oil-soaked pelicans, and if you're for it, you're subverting the opposition to North Korea?

Consequences

Looks like the rest of us better hunker down for a wild ride here. Just to recount the facts for a moment or so, today the FCC announced a Notice of Inquiry on FCC Chair Julius Genachowski's so-called "Third Way"proposal for net neutrality rules. Genachowski wants to reclassify broadband ISPs as telecommunications common carriers for the purpose of barring them from unfairly discriminating against Internet services and applications. 

But the agency would "forbear" against using many of the Communications Act's common carrier rules, particularly those that empower the government to regulate prices.

What would be the "legal and practical consequences" of doing this, the NOI asks. From which specific sections of the Communications Act should the agency forbear? And the document takes on the tricky question of how to ensure that future Commissions don't reverse these barriers against further regulation.

"What provisions, if any, could appropriately be included in a forbearance order to establish a heightened standard for justifying future 'unforbearance'," the NOI asks. This question is doubtless responsive to the concerns of AT&T and other companies who invoke the "slippery slope" argument. If the FCC passes these forbeared rules, "I'm a 3-2 vote away from the next guy coming in and saying I disagree with that, I take it away," commented AT&T's Chief Executive Randall Stephenson earlier this week.

What's the point?

The press conference that followed the hearing made it evident that there's some uncertainty as to how this process will move forward. Technically, this inquiry is a subset of (but separate from) the agency's Open Internet proceeding, which last October proposed the addition of two new provisions to the agency's "Four Freedom's" Internet Policy Statement. These would include an enforcement mechanism against ISPs that, like Comcast, discriminated against some Internet application or feature, and a transparency provision.

But then came the Federal appeals court decision striking down the agency's sanctions against Comcast, which were based on the Communications Act's Title I "information service" definition of ISPs. That necessitated this turn to the Communication Act's Title II common carrier provisions, the subject of this NOI.

Will this latest process considering Title II "have to play itself out," asked one reporter, before the Commission thinks about moving forward on the Open Internet proceeding? Does the reclassification issue come first?

"I'm not sure how to answer that," Genachowski confided. "We haven't said anything publicly about how the different proceedings will relate to each other. We've been very clear about goals. I think, on that, if we could get back to you with any timetables that we're looking at, but of course, there's a relationship."

The next question basically asked whether Genachowski's Third Way plan was a done deal, as some have charged. "What can you say to reassure people that that's not the case?"

"I think that we have, each of us, an obligation to keep an open mind as we run a public process," he insisted. "There's no point in having a Notice and Comment process unless people bring open minds to it."

Ditto, added pro-net neutrality Commissioner Mignon Clyburn, her rhetorical guns pointed at Genachowski's critics.

"My fear," she proclaimed, "is that there are efforts underway designed to stifle at all costs our ability to engage in reasonable and productive discussion about these pressing issues. Indeed, it appears that we are a long way from a sincere debate on the merits of these proposals. There is, I believe, a great deal of misinformation being disseminated, which is creating misplaced anxiety."

This NOI, Clyburn added, successfully takes a "difficult and combustible topic" and presents it "in a way that should produce meaningful and fruitful discourse."

We're all ears. The deadline for comments on the probe is July 15. The deadline for replies to comments is August 12. The proceeding number is 10-127, and you can file your fruitful or combustible comments with the FCC here.