The State of the Net Neutrality Battle
Declan McCullagh really gets to the heart of where the net neutrality battle stands right now.
The last time there was a major rewrite of telecommunications laws, it took something like five years for Congress’ internal mechanisms to spit out the Telecommunications Act of 1996. A push for national cable franchising legislation went on for years but died without a vote.
Which leaves pro-Net neutrality groups in an uncomfortable quandary. If they can’t prod the FCC to grease the rails and slide some kind of regulation through soon, even if the legal underpinnings are anything but firm, Congress may not act until the iPhone 8G hits the streets in 2015. And by then, today’s high water mark of Democratic political power may be just a memory.
So they need to crank up the public and private pressure on Genachowski and the other commissioners. “This appears to be the start of a long process,” Public Knowledge said Monday. It claims the FCC must use its existing “authority to carry out its plan to set some rules of the road for the Internet.”
There is a flaw in that argument. Even though there have never been explicit Net neutrality laws or regulations, actual examples of malfeasance by broadband providers have been as rare as George W. Bush being caught eating arugula. You can count them on one hand: Comcast v. BitTorrent and Madison River.
If Comcast or AT&T ever violates antitrust laws or consumer protection laws, existing law gives the Justice Department and state attorneys general ample authority to investigate and litigate. The lawyers staffing those agencies, hardly timid souls, have proven to be eager and willing to do just that. And fraud, of course, has been illegal for hundreds of years.
In addition, California law allows companies such as Amazon.com, Google, eBay, and Yahoo to sue broadband providers engaging in any “unfair” business practice that has caused “injury” to them.
So why is this urgent push for federal regulations so necessary? Genachowski might be asking himself that question right about now.
The FCC is out on a legal limb – their argument for Title II rested, in large part, on a dissenting (minority) Supreme Court opinion – a majority of Congress opposes expanded FCC regulatory authority, and that majority will almost certainly grow next year. The best plausible outcome for pro-net neutrality advocates right now is basically a lengthy FCC rule-making process, followed by years of court battles….which they hope they win. That’s more of a prayer than a strategy.
Oddly enough, all of this seems less necessary now than ever, because the actual policy differences between stakeholders are becoming smaller and smaller. There is a growing realization that, as McCullagh points out, there are quite a lot of existing laws and mechanisms to enforce actual, harmful behavior. There is a growing realization that managed services are important, even necessary, for some applications, and everybody (consumers, content providers and internet providers) can be better off with the option available. And there is growing realization that this is not a zero-sum game; better QoS for some content does not require degradation of other content.
It’s hard to say where we go from here, but it’s a shame that the policy making process has been so captured and shaped by polemics and hysteria.
I agree the light touch is ripe for a challenge which would waste much more time and effort. I understand the FCC has to do something to curtail abuses and ensure it has authority to implement the National Broadband Plan, but I earnestly believe to pull it off, the FCC cannot act on its own and indeed needs to consult with Congress and stakeholders more to ensure that it acts within its limited authority. Otherwise, it is time to exploring new authority from Congress.
I agree the light touch is ripe for a challenge which would waste much more time and effort. I understand the FCC has to do something to curtail abuses and ensure it has authority to implement the National Broadband Plan, but I earnestly believe to pull it off, the FCC cannot act on its own and indeed needs to consult with Congress and stakeholders more to ensure that it acts within its limited authority. Otherwise, it is time to explore new authority from Congress.
It’s a shame that so much time and energy is wasted on the net neutrality battle, particularly when other legal mechanisms exist to protect consumers. The FCC should be focusing on doing what it can to ensure that everyone has access to broadband, understands how to use the technology, and sees the value in adopting it.
Mr. Henke’s commentary is highly poised and brings a perspective that I had not previously considered. He sheds light on the extensive and varied means by which anti-trust and anti-consumer behaviors might be addressed, if necessary. Although we have not seen a demonstrated need to curb anti-competitive behavior, if ISP’s decide to begin engaging in such conduct, there are many people ready and duty bound to step in without the addition of the FCC. This piece reiterates the fact that net neutrality is a solution in search of a problem.
Declan McCullagh raises a very important point. There is a system in place to address consumer protection and antitrust issues. The Federal Trade Commission and the Department of Justice have addressed these issues for decades. The FTC even offered the Federal Communications Commission a hand in drafting consumer protection language for the FCC’s national broadband plan last year.
In addition to the federal consumer protection and antitrust statutes in place, the states also have consumer protection and antitrust laws in place. There are quite a few attorneys general who would like to bolster their resumes by taking on a few large broadband providers.
But as Mr. McCullagh rightly points out, broadband providers have been avoiding on their own the discriminatory practices Free Press and Public Knowledge continue to allude to.
Why recreate the wheel?
Admitting that the FCC’s “legal unpinning are anything but firm ,” Mr. Henke aptly notes that the Commission should try to circumvent the law just to achieve its desired end. The stakes are too high to allow bureaucratic determination to reverse precedent and to impose regulations that would affect such a major segment of the U.S. economy and bears so many implications to the American public.
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