House Takes Flight Of Net Neutrality Fancy

Updated:  The U.S.  House of Representatives resumed its flight from reality on Friday (April 8) when it voted to repeal the Federal Communications Commission (FCC) rules to mandate an open and non-discriminatory Internet.  The vote was 240-179, with six Democrats siding with the Republicans.

On Tuesday, the House went through its warm-up act by approving the procedures used for the repeal, breaking out yet again the rambling, discredited arguments that have no basis in fact but which seem to take on additional merit when screeched at the top of a legislator’s lungs.  No, the government is not about to “take control of your Internet,” as Rep. Marsha Blackburn (R-TN) vehemently argued.  Nor is the government going to “assign priority and value” to content, as Blackburn said.

The concept behind a neutral Internet is quite simple:  Those companies, which provide access to the Internet, can’t play favorites.  That’s the opposite of taking control and does not assign any priorities or values.  That was the legal ground rule when the Internet was created, and which needs to be reinstated since the 2005 FCC decision taking away some of the Commission’s legal authority to enforce nondiscrimination.

The Republican side of the debate had almost a desperate, tin-hat conspiratorial air to it.  Read paragraph 84, which will “squelch jobs and growth,” Blackburn said.  Look at paragraph 47, footnote 148, Communications Subcommittee Chairman Greg Walden (R-OR) advised.  One of those sets out the case-by-case basis for determining rule violations – a concept most liked for its flexibility.  The other doesn’t preclude a specialized offering, like Koshernet, as quoted in the order and it certainly isn’t religious persecution.  It says that network operators can’t hide behind a Koshernet or like product that filters out some sites to get out of Net Neutrality obligations.  If there were a dodge like that, the Net Neutrality rules, vague and incomplete as they are now, would be even more useless.  Then again, neither Koshernet, nor any similar Web site, is a carrier.

AT&T is even part of the tin-hat conspiracy.  Recall that AT&T agreed to support the FCC’s rules, because the Commission gave away half of the Internet – the wireless part – to get AT&T (and cable companies) on board.  AT&T testified to Walden’s Subcommittee on March 6 that it supported the rule.  In the April 5 House action, Walden and Rep. Cliff Stearns (R-FL) said hidden motives were at play.  Walden scoffed at the notion that AT&T was really supporting the Commission, saying that AT&T agreed to go along because the FCC was holding a reclassification threat over their heads. Stearns said that because “a lot of people are fearful of the FCC. That's why they won't say anything” contrary to the FCC rule.  Under this scenario, AT&T gets a pass for accepting the FCC rule because it really didn’t mean it.

Nonsense.  The idea that this FCC could coerce anyone into anything, or even strike fear into corporate hearts, is simply laughable.  This Commission doesn’t know how and doesn’t have the gumption to operate that way.  If it did, this issue would have been decided last summer, following up on the U.S. Appeals Court, D.C. Circuit, overturned the FCC’s ruling in the Comcast case. 

The debate about the FCC overreaching its authority of course came up again, with Republicans bidding to become a new bureau of the Commission because the House members are just eager to delve into the minutiae of communications law.  They don’t seem to realize that the Communications Act does give the FCC extensive authority, even over services on airplanes.  That’s not the “camel’s nose,” as Rep. Rob Woodall (R-GA) said.  It’s the law and has been for years. The Commission, for example, approved cell service for airlines (along with the Federal Aviation Administration).

The House members who complained about how the FCC over-reached in the Comcast case probably forgot it was a Republican FCC Chairman, Kevin Martin, who found Comcast had violated the FCC policy statement on open Internet.  Now he was a chairman who could strike fear into the hearts of those in some industries.  Ask the cable guys.

It certainly is easier to argue in the abstract than it is to listen to people who actually who have been in the Internet business and who want to see the Internet open.  Rep. Jared Polis (D-CO), who carried the debate on the rule, made his money as an Internet entrepreneur.  He spoke at length about how important the open Internet was to him.  Robin Chase, who founded Zipcar, wrote a well-received article for Politico on how that company wouldn’t exist without an open Internet.  None of it mattered to those on an ideological mission to protect the large Internet providers.

The one businessperson cited by the proponents, Tom DeReggi, president of RapidDSL and Wireless, was in fact quoted by Polis, who repeated DeReggi’s assertion at the March 9 hearing of Walden’s subcommittee that it was OK to block Netflix.  As a witness for the Republicans, DeReggi did a lot to help the Democrats.

The Republicans’ target is big government, whether the threat is real or imagined, and in the case of the sponsors of the resolution to curb the FCC, the emphasis is on the imagined powers that the FCC doesn’t have.  They refuse to see any instance in which a monopoly or duopoly industry would hurt consumers and consistently put forward the fairy-tale vision of consumers helping themselves in a market dominated by one or two carriers.

Why should the real world intrude when the private sector is perfect?  The private sector has its limits.  A recent report on broadband deployment found North Carolina had some of the most expensive, and slowest, service in the country.  It was for this reason that municipalities in the state wanted to build their own networks, an effort fought to the death with Time Warner Cable which has now having some success with a more friendly state legislature willing to pass the anti-muni bill.

It was this situation that prompted FCC Comr. Mignon Clyburn, a former South Carolina state regulator, to show some real leadership on the muni issue by coming out against state legislation that hobbled the municipalities, which wanted to build their own networks.  She correctly recognized that the private sector had failed to meet its obligations and it was fitting and proper that she spoke out on the subject.

Up north, the Canadian Internet Service Providers are doing and saying the kind of things that would make their brethren below the border blush.  Rogers was caught throttling the World of Warcraft multiplayer game.  And the industry finally admitted that usage-based billing had nothing to do with the costs of providing service.  It was all a move to force consumers to use less bandwidth.  In filings last month and last year, the Canadian ISPs told their regulatory agency that usage-based pricing has no relation to the cost of providing service.

As the carriers told the Canadian Radio-Television Regulatory Commission last November, “the fundamental purpose of these (usage) charges is not to attempt to recover narrow incremental costs, but rather to influence end-user behaviour. Any assessment of incremental costs that does not take into account broader behavioural impacts would certainly result in rates that make an inadequate contribution to satisfying the carrier’s network management objectives.”

That’s the culture the FCC is dealing with and that consumers are dealing with. Yet even in the face of a threatened Presidential veto, the House continues on the path into an ideological never-never land.













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