How to Preserve an Open InternetJanuary 15, 2010
The FCC can preserve the Open Internet with the tools already at its disposal. With a coalition of other public interest groups, Public Knowledge filed comments with the FCC yesterday emphasizing the importance of the Internet, and what can be done to protect it.
Along with the Center for Media Justice, Consumers Union, Media Access Project, and New America Foundation, we dealt with the bulk of the issues raised in the FCC's Notice. We filed them in addition to comments that concern the relationship of copyright enforcement to the principles of an open Internet.
Here's what we had to say.
The proposed rules are narrow, but necessary to preserve an open Internet.
The unique position occupied by broadband access providers justifies special consideration. While some (including Comcast in this very proceeding) have suggested that if the FCC is going to regulate the Internet at all, it should regulate all of it–including content and applications–the FCC has proposed, and we support, only rules that are narrowly focused on the relationship of the broadband ISP to the home consumer.
We reiterate our argument that the Internet owes its success to its open, decentralized nature. The Internet is a general purpose technology, and its users are lucky to have a network where any individual can be heard, and where every company can compete on the merits of its service–rather than on getting special deals that advantage its service over others. There have been troubling signs that ISPs, who connect their customers to the public Internet, and whose customers in many places have no or insufficient competitive alternatives, want to become Internet toll-collectors and gatekeepers. (Additionally, the legacy businesses of many ISPs, such as cable television and telephone service, sometimes cause them to work at cross-purposes with an open Internet. Competition can be unsettling after years of guaranteed profits.)
Thus, the FCC must act to preserve the open nature of the Internet. To best accomplish this, and to avoid a fragmentation of the Internet, the rules should apply to all ISPs, mobile and fixed, wireline and wireless. The Commission should take into account the facts and circumstances of different access technologies while applying the same broad rules.
The proposed rules should be adopted with certain modifications.
In general, we're happy with the rules the FCC proposed to adopt. However, we say that with a few caveats. The Commission went a little overboard with exceptions to the rules, threatening to leave loopholes big enough to drive a truck through. For instance, we argue here as we did in our other comments, the rules already apply only to lawful content. It is thus unnecessary to write in “exceptions” to things the rules already don't apply to. Network operators have today, and will continue to have, the ability to restrict access to unlawful content. That said, collateral damage is not okay. In trying to restrict access to, for example, material that infringes copyright, ISPs should not adopt overbroad measures that also block access to lawful content. We're worried that writing in unnecessary “exceptions” will encourage ISPs to take just these kinds of measures.
The FCC has said that ISPs will continue to be able to reasonably manage their networks. We agree, but we add that we believe that “network management” means exactly what it says: the kinds of management designed to ensure a network's smooth operation. You could argue that all kinds of discrimination are necessary to ensure the “smooth operation” of a network. You could likewise argue that dumping all the cargo out of your truck will make it go faster, or that you should cut off your nose to spite your face. Thus, we argue that “reasonable network management” practices should be agnostic as to the source or destination of a communication, and content-neutral. Management of “the network” does not entail looking at the content of its traffic, and should not unduly affect lawful applications. Finally, the transparency rule ensures that technologies ISPs wish to deploy are not unduly discriminatory.
Similarly, in some cases prioritization of Internet traffic might be necessary for public safety or other reasons (for example, network control traffic). Of course, prioritization at the direction of government entities in times of emergencies, in accordance with the usual legal frameworks, would not violate the rules. We ask the FCC to adopt a consistent policy on prioritization, rather than treating the issue piecemeal. Additionally, while nothing in the rules prevents companies who provide Internet service from also providing non-Internet “managed services,” we ask the FCC to recognize that, just like with reasonable network management, there is a potential for an overbroad definition of managed services to seriously weaken the rules. It is also possible for an ISP to violate the rules as written if something is inappropriately labelled as a “managed service.” We recommend that the FCC initiate a further proceeding on the competitive issues arising from ISPs also offering managed services.
The FCC should adopt a simple complaint process and ensure that network management actions are disclosed to users.
The rules are meaningless if there's no way to enforce them. We've proposed a system that is simple enough for ordinary consumers to use, but have put into place safeguards to ensure that ISPs are not bogged down by baseless complaints.
ISPs will be able to head off most complaints by clear disclosure of their management practices. Building on the earlier comments of the New America Foundation regarding broadband disclosure, we clarify that this kind of disclosure goes hand-in-hand with the Open Internet rules. Consumers have a right to know exactly how ISPs are managing their connections to the Internet.
The FCC has sufficient legal authority to act.
Contrary to what some may argue, “ancillary authority” is not some novel concept that allows the FCC to regulate whatever it wants. The FCC has general jurisdiction only over “communication by wire or radio“, and ancillary authority simply refers to the FCC's power to regulate the communications industry when Congress hasn't specified how to proceed one way or the other. Without ancillary authority, the FCC has little power to adapt to changing market and technological realities. Not only that, without ancillary authority, the FCC will have to throw out many of its 911, number portability, and other regulations. The FCC has relied on (and the Supreme Court has upheld) ancillary authority in the past to regulate the cable industry. Recently, the FCC used ancillary authority to require that analog TVs be labelled as such right before the DTV transition.
We recognize that the DC Circuit is skeptical of the way the FCC has been presenting its authority to ensure an open Internet. Thus, we pointed out two more direct, narrowly focused ways the FCC may proceed: First, the FCC may continue to rely on its ancillary authority, but more explicitly ground that authority in Title II of the Communications Act. Title II has long ensured that telecommunications providers interconnect with each other in nondiscriminatory ways–it's hardly a stretch to suggest that the principles that have ensured the functioning of a national communications system made up many interconnected networks be continued into the twenty-first century. The principles of nondiscrimination and interconnection that are at the heart of Title II would be undermined if the same principles are not also applied to new communications technologies. Another way the FCC can go forward–in many ways the simplest–is for the FCC recognize that broadband Internet access service is a “telecommunications service” which falls directly under Title II. The Supreme Court has already ruled that the FCC has the authority to make these kinds of classifications. Reclassifying broadband Internet access service as a Title II “common carrier” or telecommunications service would be better aligned with something that all Internet users recognize–that the primary purpose of the Internet is communication, and long-standing communications policies and laws already provide the tools to ensure interconnection and nondiscrimination. Luckily for fans of an open Internet, the FCC has already begun to consider these alternative, and perhaps less controversial, bases for authority.
Over the next few days and weeks, we're going to be digesting the other comments filed, as well as reading the tea leaves to determine how the FCC will respond if the DC Circuit limits ancillary authority. Even after years of debate, this first round of comments is just the beginning.
About John Bergmayer
John Bergmayer is Legal Director at Public Knowledge, specializing in telecommunications, media, internet, and intellectual property issues. He advocates for the public interest before courts and policymakers, and works to make sure that all stakeholders — including ordinary citizens, artists, and technological innovators — have a say in shaping emerging digital policies.