FCC Gets an Earful on Network Neutrality Rules

Comments came pouring in to the Federal Communications Commission fast
and furious this week, as Internet companies, telecom providers and a parade
of advocacy groups, industry associations and other interested parties
offered their free advice as the commission mulls a landmark move to
regulate ISPs.

The issue at hand is a notice of proposed rulemaking that seeks to
clarify the FCC’s authority over the way ISPs manage traffic on their
networks, setting binding rules against blocking or discriminating against
content on the Web.

Many of the nearly 22,000 comments, filed to meet the Thursday deadline,
reiterated the same arguments that have carved out the borders in the
long-simmering network neutrality debate.

Supporters warn that ISPs, if left unchecked, will seek to impose a toll
system on their networks, striking side deals with content and application
providers to provide swift transmission of their traffic in exchange for a
fee. Opponents, meanwhile, argue that the Internet has thrived under a
deregulated model, and efforts to preserve that openness are best served by
maintaining the current framework rather than imposing new regulations that
could undermine the incentives for providers to invest in their networks.

AT&T (NYSE: T), a historic opponent of network neutrality rules, included
in its filing a paper by network experts Gerald Faulhaber and David Farber
that described the FCC’s proposed rulemaking the “most significant reach of
regulatory power to the Internet in U.S. history.”

But net neutrality proponents take a different view, arguing that the
general openness was the law of the land until a 2005 U.S. Supreme Court
ruling that rolled back the FCC’s regulatory authority over broadband
Internet providers.

In addition to the litany of consumer advocacy groups that have long
campaigned for network neutrality rules, Google (NASDAQ: GOOG) has emerged
as perhaps the most vocal supporter of the policy in the Internet sector.

“In our comments filed
today in the FCC’s proposed rulemaking docket, we explained that our goal is
straightforward: ‘to keep the Internet awesome for everybody,'” Google
telecom and media counsel Rick Whitt wrote Thursday in a blog post.

Then in a modest show of solidarity with the opposition, Google submitted
with Verizon a joint set
of comments
expressing common support for some of the commission’s
broader — and least controversial — goals, such as the importance of
openness, innovation and investment in the Internet ecosystem. They
companies also advised the commission to generally apply a light-touch
regulatory approach, only taking action against “bad actors” on a
case-by-case basis.

They also encouraged the FCC to form a technical advisory group to help
mediate disputes, and reminded the FCC of the importance of affording
providers the flexibility to manage their networks to ensure an overall
quality of service, while being able to block illegal or malicious traffic.

That mild consensus revisited the joint blog post penned by the CEOs of
Google and Verizon Wireless on the eve of the FCC’s vote to initiate the rulemaking
process
in October.

In both instances, the companies tried to show common ground between two
camps that are generally perceived as at odds with one another in the net
neutrality debate. But at the same time, they acknowledged that there are
some significant areas in which they disagree.

In its far longer individual
filing
with the FCC, representing both Verizon (NYSE: VZ) and its
wireless subsidiary Verizon Wireless, a joint venture with Vodafone (NYSE:
VOD), the telecom giant argued vehemently against “prescriptive rules,”
particularly in the wireless sector, which would also be included in the
proposal.

Verizon also included a lengthy legal analysis, arguing that the FCC does
not have the statutory authority to regulate ISPs and that any effort to do
so would invite a challenge on constitutional grounds, outlining the issues
that will reemerge in the all-but-certain litigation that would follow the
enactment of the rulemaking.

In the meantime, the FCC is already tied up in a similar challenge to its
authority from another long-time opponent of net neutrality rules. Comcast,
which submitted its own set of
comments
arguing against the rulemaking, is challenging the action the
FCC took against it in 2008, after determining that the cable giant had been
secretively blocking peer-to-peer traffic on its network.

Comcast (NASDAQ: CMCSA) enjoyed a
favorable hearing before a federal appeals court
last week, when it
argued that the FCC didn’t have the authority to enforce an Internet policy
statement, the same set of principles that it is now seeking to enshrine as
a binding set of rules. But Comcast’s broader argument in that case, which
is echoed in a litany of comments submitted this week by cable and telecom
providers and their supporters, is that the FCC would be acting beyond the
scope of its authority even by trying to set net neutrality rules,
essentially putting ISPs outside the regulatory purview of the commission.

If the court agrees with Comcast’s more vigorous argument against FCC
authority in its ruling, the current net neutrality proceeding could
unravel.

The FCC is accepting reply comments through March 4, after which the
rulemaking would normally come up for a vote at the FCC’s monthly meeting.

However, a source at the FCC told InternetNews.com that with no
way of knowing when the court will issue its ruling, the timing of the net
neutrality rulemaking vote is still up in the air.

Kenneth Corbin is an associate editor at InternetNews.com, the news service of
Internet.com, the network for
technology professionals.

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