Net Neutrality: The FCC "Assumes" Control - Secure Arkansas

Net Neutrality: The FCC “Assumes” Control

February 7, 2011 Net Neutrality

By Allison K. Sanger
National Coordinator, Secure the Heartland

On December 21st, 2010, the Federal Communications Commission (FCC) acted without congressional approval to regulate the Internet under its own Net Neutrality Rules. According to the FCC, they are acting to preserve the Internet as an open network enabling consumer choice, freedom of expression, user control, competition, and the freedom to innovate. [1]

The FCC is assuming control of the Internet based on a bipartisan Internet Policy Statement that they themselves adopted in 2005. The new rules are not based on law, but rather on their own assumed authority. In fact, a previous attempt to impose these rules was rejected in the D.C. Circuit courts just eight months prior. The court ruled that the FCC “failed to make [its] showing” that Title I-based net neutrality protections were within the FCC’s authority. [2]

In non-legal terms, this means that the FCC failed to prove it had the authority to impose net neutrality rules based on its own assumed authority. Yet here we are. Before we get into any lengthy details about what Net Neutrality really is, let’s first take a look at the players involved.

2009 Federal Communications Commission (FCC) Commissioners

There are five Commissioners appointed by the President and confirmed by the Senate. These five individuals direct the FCC for five year terms. The President also chooses which of these Commissioners serves as Chairperson. Only three of the Commissioners may be members of the same political party and none of them may have a financial interest in any Commission-related business. Currently, the individuals who run the FCC are Julius Genachowski (D-Chairman), Michael J. Copps (D), Robert M. McDowell (R), Mignon Clyburn (D), and Meredith Attwell Baker (R). [3]

Chairman Julius Genachowski

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Chairman Julius Genachowski was nominated by President Barack Obama on March 23, 2009, and was confirmed by the U.S. Senate on June 25, 2009. [4]

Genachowski was the Chairman of the Technology, Media and Telecommunications Policy Working Group for then Senator Barack Obama’s 2008 Presidential Campaign, which created the Obama Technology and Innovation Plan. He also advised and guided the Internet marketing for the campaign. After the election, it was reported that he would be President Obama’s choice to head the FCC. He was also a Notes Editor at the Harvard Law Review when it was headed by Barack Obama. [5]

In regards to Net Neutrality, Chairman Genachowski has stated,

“For myself, I reject both extremes in favor of a strong and sensible, non-ideological framework — one that protects Internet freedom and openness and promotes robust innovation and investment throughout the broadband ecosystem. Because none of these goals are abstractions. They live or die not in ideology or theory, but in practice — in the hard work of grappling with technology, business, and real-world consumer experiences.” [6]

Commissioner Michael J. Copps

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Commissioner Michael J. Copps was first appointed in 2001 by President Clinton, then later confirmed as the minority party in 2005 by President Bush. [7]

In addition to supporting the new Net Neutrality Rules, he has also been active in stopping broad Media Deregulation movements and supporting harsher penalties for indecent material on the airwaves.

In his own words,

“I’m not trying to establish a national nanny here, but we only have to send one case to [license] hearings and the message would go forth to broadcasters all over the U.S. that this is a new era… Right now, [broadcasters] not only don’t fear us, they don’t respect us, either.” [8]

Commissioner Robert M. McDowell

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Commissioner Robert M. McDowell was originally appointed in 2006 by President Bush and later reappointed by President Obama as the first Republican to be appointed to an independent agency. [9]

In regards to Net Neutrality, Commissioner McDowell has condemned the ruling calling it “highly interventionist.” Since his appointment, McDowell has stirred the pot with requests for an FCC Audit, which is still open and pending. In addition, he recused himself from a highly controversial vote dealing with the merger between AT& T and BellSouth, citing a conflict of interest and flatly refusing to be swayed to vote. Instead, he cited his ethics agreement with the Senate and was quoted as saying,

“It appears that the lingering question of my involvement is being used as another excuse for delay and inaction,” said McDowell when declining the offer to vote. [10]

Commissioner Mignon Clyburn

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Commissioner Mignon L. Clyburn was nominated by President Obama on June 25, 2009, and sworn in on August 3rd of that same year [11] amid some concerns that her appointment was based on President Obama’s relationship with her father, House Majority Whip Clyburn. [12]

Since her appointment, Net Neutrality has been Commissioner Clyburn’s main hot button topic, but has publicly stated that she believes the guidelines are not as strong as they could be. [13]

In a speech given to The Center for Media Justice, Clyburn states that her early childhood rural experiences “helped shape my approach to what we call Broadband. Every community, every nappy-headed child deserves to be not only connected, but to be proud of who he or she is.” [14]

Commissioner Meredith Attwell Baker

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Commissioner Meredith Attwell Baker was nominated by President Obama on June 25, 2009, and confirmed by the U.S. Senate on July 24, 2009, as one of the two Republicans to make up the Commission. [15]

Commissioner Baker has been a very vocal voice against the new Net Neutrality Rules, making statements such as,

“By seeking to regulate the Internet now, we exceed the authority Congress has given us…” [16]

In regards to this topic Commissioner Baker has this to say,

“I’m afraid we are endangering a really important agenda… by pushing forward with a partisan, big-government regulatory issue [net neutrality] that has no immediate need for us to act.” [17]

Now that we know at least a small amount about the players involved in this issue, let’s dive into the details — or at least do an overview of the details since the ruling is 194 pages of text.

First, the ruling was not unanimous, carrying only 3 votes out of 5. Not surprising, the three democrats voted in favor and the two republicans voted against. [18] However, both Commissioner Copps and Commissioner Clyburn, who supported the ruling, did not give it a glowing endorsement.

“While I cannot vote wholeheartedly to approve the item, I will not block it by voting against it. I instead plan to concur so that we may move forward.”
— Commissioner Copps [19]

“The Commission has worked tirelessly to offer a set of guidelines that, while not as strong as they could be, will nonetheless protect consumers as they explore, learn, and innovate online.”
— Commissioner Clyburn [20]

The two opponents to the ruling have been very vocal about their reasons. According to a Wall Street Journal article written by Commissioner McDowell, he states,

“‘Net neutrality’ sounds nice, but the Web is working fine now. The new rules will inhibit investment, deter innovation and create a billable-hours bonanza for lawyers.” [21]

Commissioner Baker, who gave a speech prior to the actual ruling, stated,

“The Commission plans next week to adopt rules to mandate that the government will decide how Internet networks are managed. We do this against the will of the courts, which have told us that we lack authority to act. And Congress, which has asked us bluntly not to act, and definitely not to act this month. While that should be more than sufficient reason, net neutrality is also the wrong policy to drive investment, jobs and opportunity into the Internet economy that this country so desperately needs.” [22]

So, what exactly is Net Neutrality, you may be wondering? The FCC defines it as three separate rules that they declare are grounded in “broadly accepted Internet norms, as well as our own prior decisions.” [23] These rules are as follows:

Transparency

Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their own broadband services;

No blocking

Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

No unreasonable discrimination

Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic. [24]

In addition to the three stated rules, there is another rule that exists, but is conveniently called a “core principle” instead of a rule. This principle, or rule, is called Reasonable Network Management [25] and many pages of this document are dedicated to defining — in the broadest terms possible — what this actually is. So, instead of stating that there are three separate rules, the FCC should actually say there are four separate rules (also referred to as “… four core principles…” on page 27 of the document). [26] Below, we will discuss each of these rules in more detail.

Transparency

According to the FCC ruling on Net Neutrality, transparency will promote competition as well as innovation, investment, end-user choice and broadband adoption in at least five ways.

1. Disclosure ensures that end users can make informed choices regarding the purchase and use of broadband service, which in turn promotes a more competitive market for broadband services. This can reduce broadband providers’ incentives and ability to violate open Internet principles.

2. End users’ confidence in broadband providers’ practices increases, so, too should end users’ adoption of broadband services. This will lead to additional investments in the Internet infrastructure, as contemplated by Section 706 of the 1996 Reform Act and other provisions of the communications laws.

3. Disclosure supports innovation, investment and competition by ensuring that startups and other edge providers have the technical information necessary to create and maintain online content, applications, services, and devices, and to assess the risks and benefits of embarking on new projects.

4. Disclosure increases the likelihood that broadband providers will abide by open Internet principles, and that the Internet community will identify problematic conduct and suggest fixes. Transparency will then increase the chances that harmful practices will not occur in the first place and that, if they do, they will be quickly remedied, whether privately or through Commission oversight.

5. Disclosure will enable the Commission to collect information necessary to assess, report on, and enforce the other open Internet Rules. [27]

Sounds good right? We have informed consumers, increased confidence, supported innovation, self regulation, and accountability. Of course, we already have all those things going for the Internet as we speak. It would seem that their idea of “transparency” does nothing but grant them, the FCC, a broader scope of self appointed regulatory authority. Furthermore, the FCC has failed to prove at this time that any of the U.S. service providers are currently breaking any of these rules.

In addition, according to the publication, the FCC believes that,

“… at this time the best approach is to allow flexibility in implementation of the transparency rule, while providing guidance regarding effective disclosure models.” [28]

The FCC has listed a few items that they believe will be effective disclosures, but go on to say that it is by no means the full list of items that will be needed to be made transparent. They also maintain that while transparency is essential for preserving Internet openness, they suggest that transparency alone is not adequate to “constrain problematic conduct.” [29] Which leads us to the next rule.

No Blocking

As noted previously, the No Blocking Rule states that fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services.

In layman’s terms, this means that the service provider (Verizon as an example) may not block consumer access to any website on the Internet. However, it should be noted that another definition of the No Blocking Rule states that:

“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.” [30]

There are a couple of interesting words in this last definition; legal, non-harmful and reasonable network management.

No Unreasonable Discrimination

The third, but not final, rule is more specifically defined within the body of the document stating,

“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.” [31]

In addition, the FCC states that the rule strikes an appropriate balance between restricting harmful conduct and permitting beneficial forms of differential treatment. In regards to this rule, the FCC cities that they themselves will determine what is reasonable or unreasonable discrimination. [32] What exactly determines such discrimination is not clearly outlined, nor are differential treatments.

It should also be noted that the publication clearly states that the FCC will not prohibit usage-based pricing or tiered pricing plans. Specifically, it states that,

“The framework we adopt today does not prevent broadband providers from asking subscribers who use the network less to pay less, and subscribers who use the network more to pay more.” [33]

This brings us to the fourth rule, which was previously defined as a principle, and is perhaps one of the most controversial items within the ruling.

Reasonable Network Management

A network management practice is defined in this document as:

“A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.“

This document goes on to say that Legitimate Network Management purposes include:

1. Ensuring network security and integrity, including by addressing traffic that is harmful to the network,

2. Addressing traffic that is unwanted by end users (including by premise operators),

3. Providing services or capabilities consistent with an end user’s choices regarding parental controls or security capabilities, and

4. Reducing or mitigating the effects of congestion on the network. [34]

The FCC “… will further develop the scope of reasonable network management will be assessed on a case-by-case basis, as complaints about broadband providers’ actual practices arise.” [35]

Perhaps most significant of all that the FCC states in regards to defining what reasonable network management practices are, is the more expansive manner that they,

“… find this standard is unnecessarily restrictive and may overly constrain network engineering decisions. Moreover, the “narrowly tailored” language could be read to import strict scrutiny doctrine from constitutional law, which we are not persuaded would be helpful here.” [ 36]

It’s interesting to note that the FCC believes that constitutional law in regards to Internet regulation is not helpful.

In regards to Network Congestion, the FCC goes on to say that it is reasonable network management to limit one user’s Internet access if they happen to be using more Internet bandwidth than their peers. [37] This would seem to directly contradict the media sound bites of an Open Internet accessible to all equally.

“The facts, the law, and the policy cannot support this decision. So again, why do we act? The only plausible reason left is to deliver on one of the President’s campaign promises. I must respectfully dissent.”
— Commissioner Baker [38]

“In 2008, the FCC tried to reach beyond its legal authority to regulate the Internet, and it was slapped back by an appellate court only eight short months ago. Today, the Commission is choosing to ignore the recent past as it attempts the same act. In so doing, the FCC is not only defying a court, but it is circumventing the will of a large, bipartisan majority of Congress as well. More than 300 Members have warned the agency against exceeding its legal authority. The FCC is not Congress. We cannot make laws. Legislating is the sole domain of the directly elected representatives of the American people.”
— Commissioner McDowell [39]

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1. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
Section I Preserving the Free and Open Internet
(Page 1)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf

2. Remarks of Commissioner Meredith Attwell Baker, December 16, 2010
Federalist Society National Press Club (Page 1)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1217/DOC-303674A1.pdf

3. Federal Communications Commission (FCC) Commissioners
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/

4. FCC Commissioners: Chairman Julius Genachowski
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/genachowski/

5. Julius Genachowski: Education and Obama Campaign and Transition Sections
Wikipedia The Free Encyclopedia
http://en.wikipedia.org/wiki/Julius_Genachowski

6. Julius Genachowski: Why He Matters
WhoRunsGov.com from The Washington Post
http://www.whorunsgov.com/Profiles/Julius_Genachowski

7. FCC Commissioners: Commissioner Michael J. Copps
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/copps/

8. Michael J. Copps: Why He Matters
WhoRunsGov.com from The Washington Post
http://www.whorunsgov.com/Profiles/Michael_J._Copps

9. FCC Commissioners: Commissioner Robert M. McDowell
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/mcdowell/

10. Robert M. McDowell: Why He Matters
WhoRunsGov.com from The Washington Post
http://www.whorunsgov.com/Profiles/Robert_M._McDowell

11. FCC Commissioners: Commissioner Mignon Clyburn
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/clyburn/

12. Mignon L. Clyburn: Why He Matters
WhoRunsGov.com from The Washington Post
http://www.whorunsgov.com/Profiles/Mignon_L._Clyburn

13. FCC poised to approve Net Neutrality Rules By Sara Jerome, 12/20/10
TheHill.com
http://thehill.com/blogs/hillicon-valley/technology/134545-copps-will-not-block-net-neutraliy-internet-line-r

14. Facing Race: A National Conference
Commissioner Clyburn as guest speaker
NOTE: The exact date of this speech is not known since the transcript was not available within the FCC website for viewing.
http://youtube.com/watch?v=tSzObOh2xXY

15. FCC Commissioners: Commissioner Meredith Attwell Baker
Federal Communications Commission Official Website
http://www.fcc.gov/commissioners/baker/

16. Remarks of Commissioner Meredith Attwell Baker, December 16, 2010
Remarks made at the Federalist Society National Press Club
(Page 1)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1217/DOC-303674A1.pdf

17. Meredith Attwell Baker: Why He Matters
WhoRunsGov.com from The Washington Post
http://www.whorunsgov.com/Profiles/Meredith_Attwell_Baker

18. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
Voting Records of each Commissioner in regards to Net Neutrality
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf

19. FCC poised to approve Net Neutrality Rules By Sara Jerome, 12/20/10
TheHill.com
http://thehill.com/blogs/hillicon-valley/technology/134545-copps-will-not-block-net-neutraliy-internet-line-r

20. FCC poised to approve Net Neutrality Rules By Sara Jerome, 12/20/10
TheHill.com
http://thehill.com/blogs/hillicon-valley/technology/134545-copps-will-not-block-net-neutraliy-internet-line-r

21. The FCC’s Threat to Internet Freedom By Robert M. McDowell, 12/19/10
The Wall Street Journal Digital Network, Opinion Journal
http://online.wsj.com/article/SB10001424052748703395204576023452250748540.html

22. Remarks of Commissioner Meredith Attwell Baker, December 16, 2010
Remarks made at the Federalist Society National Press Club
(Page 1)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1217/DOC-303674A1.pdf

23. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
I.1 (Page 2)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf

24. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
I.1.i,ii,iii (Page 2)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf

25. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
I.1 (Page 2)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf

26. Federal Communications Commission:
Preserving the Open Internet and Broadband Industry Practices
III.43 (Page 27)
http://www.fcc.gov/Daily_Releases/Daily_Business/2010/db1223/FCC-10-201A1.pdf