{"id":127016,"date":"2014-06-30T19:18:33","date_gmt":"2014-06-30T19:18:33","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=127016"},"modified":"2014-06-30T19:18:33","modified_gmt":"2014-06-30T19:18:33","slug":"fcc-net-neutrality-way-forward","status":"publish","type":"post","link":"https:\/\/rinf.com\/alt-news\/sicence-technology\/fcc-net-neutrality-way-forward\/","title":{"rendered":"The FCC and Net Neutrality: A Way Forward"},"content":{"rendered":"

CORYNNE MCSHERRY<\/em><\/p>\n

EFF has long been critical of the Federal Communications Commission\u2019s efforts to regulate digital technologies and services. We\u2019ve warned against FCC\u00a0rules and strategies<\/a>\u00a0that threatened to (or actually did) give the agency too much power over innovation and user choice. And with good reason: the FCC has a sad history of being\u00a0captured<\/a>\u00a0by the very industries it\u2019s supposed to regulate. It also has a history of ignoring grassroots public opinion. In the\u00a0early 2000s<\/a>, for example,\u00a0the commission essentially\u00a0ignored<\/a>\u00a0the comments of hundreds of thousands of Americans who opposed media consolidation.<\/p>\n

When it came to the open Internet, the FCC\u2019s\u00a0confused legal arguments<\/a>\u00a0regarding the scope and limit of their power made us fearful that the FCC would abuse its power. With respect to net neutrality, it started out by claiming a broad \u201cancillary\u201d authority to regulate the Internet \u2014 a claim that, if accepted, could be a\u00a0Trojan horse<\/a>\u00a0for ever-expanding regulatory overreach. If the agency couldn\u2019t articulate a reasonable and clear legal authority for its actions, how could\u00a0we trust<\/a>\u00a0it to recognize the limits of that authority?<\/p>\n

Until recently, those concerns have led us to largely stay out of the FCC\u2019s various efforts to define \u201copen Internet\u201d rules. We\u2019ve put our energies elsewhere:\u00a0uncovering Comcast\u2019s meddling with BitTorrent<\/a>\u00a0traffic; drawing attention to companies like\u00a0Paxfire<\/a>, through which ISPs diverted web searches; and developing software tools to\u00a0Test Your ISP<\/a>.<\/p>\n

More recently we\u2019ve worked to develop and support\u00a0Open Wireless<\/a>\u00a0to give people more options for Internet access wherever they are. We are expanding that work to include stronger support for\u00a0community and municipal high-speed Internet<\/a>\u00a0options. We\u2019ve also strongly supported the FCC\u2019s role in requiring\u00a0transparency<\/a>\u00a0from providers.<\/p>\n

Exploring our options<\/b><\/p>\n

We will continue that crucial work. But in the meantime, the ground has shifted. The companies who have quasi-monopoly power over Internet infrastructure have gotten\u00a0bigger<\/a>\u00a0and have begun to\u00a0abuse<\/a>\u00a0that power. In addition, the D.C. Circuit appeals court\u00a0told the FCC<\/a>\u00a0last January that the legal basis (called Section 706) it\u2019s currently claiming to support its proposed open Internet rules doesn\u2019t allow the FCC to pass the kinds of rules that would target those abuses, such as rules against blocking, discrimination among applications, and special access fees.<\/p>\n

Against this background of quasi-monopolistic industry power and a confused regulatory agency, the question of how to ensure a neutral Internet that serves rather than inhibits innovation and user choice gets even harder. Is a carefully circumscribed role for the FCC part of the solution? Let\u2019s look at the leading alternatives first.<\/p>\n

We started by thinking about antitrust law. Some, including several witnesses at a congressional hearing\u00a0last week<\/a>, would like the FCC to stand down altogether in net neutrality. They argue that we should rely on antitrust law, not telecommunications policymakers at the FCC. There is strong appeal to that argument; if your concern is competition, isn\u2019t that what antitrust law is for? But current antitrust law is no magic bullet. It focuses mainly on preventing monopoly prices, not harms to innovation, and it doesn\u2019t protect free speech. Also, many tools of antitrust law can only be brought to bear where you can show that one company dominates a market. It is too easy to manipulate the definition of the \u201cmarket for Internet access\u201d and hard to tie the concept down so that courts can identify antitrust violations. Finally, antitrust litigation is slow and expensive for all parties, putting it out of reach for many startups and nonprofits that could be hurt by an ISP\u2019s non-neutral practices. In the meantime, innovators and users face a climate of uncertainty and risk. We hope antitrust will help, but it can’t be the only solution.<\/p>\n

Another option is to leave the problem to Congress. A major\u00a0revision<\/a>\u00a0to the Telecommunications Act is underway, and it could include new neutrality rules. Or Congress could pass a narrower law right now, focusing on promoting a neutral Internet. There\u2019s at leastone bill<\/a>\u00a0on the table already. That\u2019s a fine idea and should happen but let\u2019s face it: given the power of the telecom lobby, and Congress\u2019s partisan gridlock, legislation that puts firm limits on\u00a0harmful discrimination<\/a>\u00a0by ISPs will not happen anytime soon. While Congress dithers, or worse yet becomes beholden to the same forces that seek to capture the FCC, access monopolies and unequal treatment of Internet users are likely to become further entrenched. Moreover, any such legislation is likely to assign the role of enforcement back to the FCC, as did a proposed bill in 2007.<\/p>\n

Looking to the FCC<\/b><\/p>\n

So that leads us back to the FCC. While Congress does its work, antitrust lawyers weigh options, and Internet users work to promote competition, empower community solutions, and ensure transparency, the FCC can be acting to enforce a few rules of the road that target the non-neutral behavior we\u2019re already beginning to see from Internet service providers.<\/p>\n

We want to be very, very clear: the FCC\u2019s regulatory role should be narrow and firmly bounded. Network neutrality rules should be limited to specific prohibitions\u2013such as blocking, discrimination among applications and prohibiting special access fees\u2013potentially combined with a renewed \u201copen access\u201d requirement that would foster local competition, and no more.<\/p>\n

Luckily, the FCC has a way to bind itself and thereby limit its own regulatory reach. It\u2019s called \u201cforbearance.\u201d While forbearance doesn\u2019t set the limits on the regulatory agency in stone as Congress could, it does require the FCC to make a public commitment that is difficult to reverse. \u00a0If it ever wants to change course, it has to engage in a contentious and tedious public process of notice and comment. We\u2019ll have more to say about these very basic regulations in our comments on the\u00a0FCC\u2019s proposed rules<\/a>, which we will also unpack in upcoming posts.<\/p>\n

To get to a place where it can actually enforce neutrality rules and do nothing further, however, the FCC first needs to do one important thing: reverse its 2002 decision to treat broadband as an \u201cinformation service\u201d rather than a \u201ctelecommunications service.\u201d This is what\u2019s known as Title II reclassification.<\/p>\n

That 2002 decision, as interpreted by the D.C. Circuit last January, now actually prevents the FCC from truly promoting a neutral Internet. That is because the court said that rules that actually do what many of us want\u2013such as forbidding discrimination against certain applications\u2013require the FCC to treat access providers like \u201ccommon carriers, \u201d treatment that can only be applied to telecommunications services. Having chosen to define broadband as an \u201cinformation service,\u201d the FCC can impose regulations that \u201cpromote competition\u201d (good) but it cannot stop access providers from giving their friends special access to Internet users (bad). The result: a set of\u00a0proposed rules<\/a>\u00a0that implicitly endorses paid prioritization and special access deals that may not be available to new businesses at any price.<\/p>\n

Some have said that reclassification would give the FCC too much power to regulate the Internet. That very concern is why forbearance is so important. Nor is it the case that the FCC has very limited power now\u2013the D.C. Circuit affirmed that the FCC has broad powers to \u201cpromote competition\u201d which could be just as vulnerable to misuse by a future FCC as any regulatory authority granted via a \u201ccommon carrier\u201d reclassification. More important than the potential breadth of power, however, is the fact that the powers that the FCC has now don\u2019t match the real goal: protecting the neutral Internet we expect and need to flourish. Reclassification, combined\u00a0as it must<\/i>\u00a0be with a commitment to forbear from impose aspects of Title II that were originally drafted for 20th<\/sup>\u00a0century telephone services and that don’t make sense for the Internet, can give the FCC the right tool for the job without giving it regulatory tools it doesn\u2019t need and may dangerously misapply.<\/p>\n

While we would have preferred for the market to right this problem itself, the consolidation of Internet access providers and the increasing willingness to use their position to extract rents from downstream applications means that we need to do more than just shine a light with transparency and support alternatives with community and municipal infrastructure. We need some minimal rules of the road and, for better or worse, the FCC is in the best position to get those rules in place sooner rather than later. EFF will be working hard to make sure the FCC does just that \u2014 and no more.\u00a0You can help<\/a>.<\/p>\n

This piece<\/a> was reprinted by RINF Alternative News<\/a> with permission or license.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

CORYNNE MCSHERRY EFF has long been critical of the Federal Communications Commission\u2019s efforts to regulate digital technologies and services. We\u2019ve warned against FCC\u00a0rules and strategies\u00a0that threatened to (or actually did) give the agency too much power over innovation and user choice. And with good reason: the FCC has a sad history of being\u00a0captured\u00a0by the very […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[487,13],"tags":[],"class_list":{"0":"post-127016","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-breaking-news","7":"category-sicence-technology"},"_links":{"self":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/127016","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=127016"}],"version-history":[{"count":0,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/127016\/revisions"}],"wp:attachment":[{"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=127016"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=127016"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=127016"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}