Reaction to Genachowski's New Network Neutrality Proposal

Author: Kevin Taglang

Reaction to Federal Communications Commission Chairman's latest network neutrality proposal was swift and came from many corners.

Aneesh Chopra, the United States' Chief Technology Officer, said, "President Obama is strongly committed to net neutrality in order to keep an open Internet that fosters investment, innovation, consumer choice, and free speech. The announced action by FCC Chairman Genachowski, building on the work of Chairman Waxman's collaborative effort to craft legislation in this area, advances this important policy priority. We recognize that this announcement reflects a significant amount of effort on the part of numerous broadband providers, Internet applications developers, content providers, consumer groups, and others to finding a thoughtful and effective approach to this issue. Today's announcement is an important step in preventing abuses and continuing to advance the Internet as an engine of productivity growth and innovation."

The announcement, FCC Commissioner Michael Copps noted, is the beginning of an important discussion, not the end. He said he'd work with stakeholders over the next three weeks to help decide who will control access to the online experiences of consumers-consumers themselves or Big Phone and Big Cable gatekeepers."

FCC Commissioner Robert McDowell issued a harsh reaction to the proposal saying, "By choosing this highly interventionist course, the Commission is ignoring the will of the elected representatives of the American people." Addressing Chairman Genachowski's work to reach consensus on the proposal with industry representatives, Commissioner McDowell said, "[A] "choice" between a bad option (Title I Internet regulation) or a worse option (regulating the Internet like a monopoly phone company under Title II) smacks more of coercion than consensus or compromise."

FCC Commissioner Mignon Clyburn said, "I am anxious to begin my review of the Chairman’s agenda meeting item that seeks to preserve an open and free Internet. We have been discussing this matter for some time, and I am glad that the dialogue has developed into a draft Order so that the Commission can further deliberate and decide this important issue. The Internet is a crucial American marketplace, and I believe that it is appropriate for the FCC to safeguard it pursuant to our duties and obligations. As noted by the Chairman in his remarks this morning, clear rules of road are absolutely necessary for consumers to be protected and for broadband providers and other users of the Internet to be able to further innovate and invest."

FCC Commissioner Meredith Baker called the proposal a mistake saying, "We do not have authority to act. The new majority of the House Committee on Energy and Commerce has asked the Commission not to circulate this Order, and a clear majority of all Members of Congress has expressed concern with our Internet policies. Whether the Internet should be regulated is a decision best left to the directly elected representatives of the American people." She urged the FCC to defer on the network neutrality question until after Congress has weighed in.

Sen Kay Bailey Hutchison (R-TX) urged the FCC to drop the proposal. "I am especially troubled that this action would occur without Congressional input and before the new members of Congress have been sworn in," she said, adding that voters "repudiated this type of government expansion on Nov. 2."

"An explicit ban on paid prioritization is needed to retain the ability of all Internet users to communicate and compete on a level playing field, preventing the emergence of fast and slow lanes that have been contrary to the nature of the Internet since its creation," said Rep Ed Markey (D-MA). "Additionally, a common policy framework for wireless and wireline broadband services should be a core component of the final open Internet order so that consumer protections are not determined by whether a user accesses the Internet via a fixed or mobile connection. It is essential that the Commission has the authority necessary to enforce the elements of its order. While I support the reclassification of broadband Internet access services under Title II, I look forward to further details and discussion about how the Commission proposes to ensure that it is on solid legal footing without such reclassification."

"The relentless push towards net neutrality reveals this administration and the FCC remain tone deaf to the will of the American people," said Rep Fred Upton ( R-MI), who is running for the chairmanship of the powerful House Energy & Commerce Committee, which oversees the FCC. "First it was cap-and-trade, then health care, and now they have launched an all out assault to regulate the Internet. We have all grown sick and tired of the Chicago-style politics to ram through job-killing measures at any cost, regardless of the consequences or damage to our economy. Rather than put a gun to the heads of our largest economic engines, now is the time for the FCC to cease and desist. The FCC does not have authority to regulate the Internet, and pursuing net neutrality through Title I or reclassification is wholly unacceptable. Our new majority will use rigorous oversight, hearings and legislation to fight the FCC's overt power grab."

Rep. Joe Barton (R-TX), ranking member of the Energy & Commerce Committee joined with Rep Cliff Stearns (R-FL), ranking member of the Communications Subcommittee in a letter praising Genachowski for "abandoning" a proposal to reclassify broadband under Title II common carrier regs. But they still suggested that the should leave it up to Congress to clarify its broadband regulatory authority. "There are questions as to the FCC's statutory authority to adopt these rules under Title I. The D.C. Circuit ruled in its April 2010 Comcast decision that the FCC had failed to demonstrate authority under Title I to regulate Internet network management," they wrote. "We therefore write to request your analysis of the FCC's authority under Title I to issue the proposed rule. In the absence of clear authority, the FCC should defer to Congress in this matter." They were looking for an answer by Dec. 10.

"Advocates of network neutrality will be disappointed the FCC isn’t going forward with “reclassification” of broadband access as a regulated telecommunications service," said Prof Kevin Werbach, "while many Republicans and network operators will complain about a “power grab” to “regulate the Internet” even after Democratic losses in the midterm elections. Both should put aside their ideologies and look realistically at the situation. Don’t let the perfect be the enemy of the good. If you believe in the need to protect the open Internet, this is the realistic way forward, and it could lay the groundwork for other steps if necessary in the future. If you see network neutrality as a dangerous drag on Internet investment, this is the realistic way to remove that regulatory overhang. Kill this proposal, and it’s hard to envision anything but years of further uncertainty, most likely ending with a worse compromise down the road. I don’t love it either, but I’m a realist. The fate of network neutrality will hinge not on the FCC’s rhetoric, but on its implementation. There can’t be implementation without an order. And I can’t see any other order making it through in the current environment."

"As the founder of Craigslist and a passionate believer in the economic and social benefits of an open and free Internet, I proudly endorse the Chairman's historic efforts to protect these important principles in our society," said Craig Newmark. "Common-sense rules of the road will help ensure certainty in markets while also preserving the openness and freedom of the Internet that has helped generate millions of jobs and share billions of ideas around the world. To clarify, I'm interested in preserving traditional American values like fairness and a level-playing, with the least amount of government involvement."

Tyrone Brown, President of Media Access Project, said, "MAP is very disappointed at initial reports about the Chairman’s proposal. Open Internet rules must include a basis for extending service to those not now covered, full application to wireless, protection against all efforts to block or degrade Internet access, and enforceable rules rather than an ad hoc complaint-based process. Most importantly, it appears that the Chairman does not contemplate invoking the Commission’s ‘Title II’ authority to ensure that the rules will withstand judicial review. MAP will work with the Commission to achieve these objectives; anything less will be checkmate by the phone and cable companies."

Free Press President and CEO Josh Silver raised a number of concerns about how the rules would apply to wireless broadband and specialized services. Free Press also favored a legal grounding in Title II of the Communications Act. He said, "Now is the moment for forward-looking, visionary policymaking, not half-measures and convoluted compromises with the companies trying to kill the free and open Internet. We look forward to working with the FCC Chairman and the full Commission to ensure that the agency passes real Net Neutrality rules that will protect the open Internet, promote competition and benefit all Internet users."

The Open Internet Coalition, which was a party to talks at the FCC on a compromise net neutrality, said it supported "circulation" of the item, but called it a "first step" and said it would work with the chairman and commissioners "as they review this proposed order to ensure that the final order achieves the president's goals."

Gigi B. Sohn, president and co-founder of Public Knowledge, said: “We commend the Federal Communications Commission for tentatively putting open Internet rules on the agenda for the Dec. 21 Commission meeting and for, we expect, circulating a draft order. As Comcast’s recent actions have shown, such rules are urgently needed. Public Knowledge looks forward to working with the Commission to strengthen the order so that consumers and the vitality of the Internet are protected. The FCC has not circulated an order with regard to the chairman’s ‘Third Way’ proposal which would have reversed the Commission’s 2002 decision to deregulate broadband access service. The ‘Third Way’ would establish a firmer legal foundation, not only for open Internet rules but also for broadband policy generally. We urge the Commission to conclude the proceeding and adopt the ‘Third Way’ proposal at a future meeting.”

Sascha Meinrath, Director of the New America Foundation's Open Technology Initiative, said, "Initial reports on the proposal indicate that it mirrors AT&T's positions at the literal expense of the general public. In their current form, the rules would allow wireless providers to continue to block consumer's access to lawful applications, content, and devices; open the door to a 'pay to play' Internet where providers would create toll roads to prioritize the traffic of the largest and richest media conglomerates and content companies; and, permit all broadband providers to block consumer's access to applications and content they deem unwanted or harmful under the guise of 'reasonable network management.' Lastly, the Chairman's abandonment of the certainty provided by Title II authority, all but guarantees that the proposed rules would not withstand a judicial challenge. Without fundamental changes to the current order, the Chairman's proposal will be a great victory for the largest telecom corporations and a sound defeat for those working to support innovation and the economic vibrancy that an open Internet facilitates. The New America Foundation is hopeful that the Chairman's office and Commissioners that support open Internet rules will develop a final order that uphold the FCC's responsibility to protect consumers and Internet freedom."

Wireless industry lobbying group CTIA said, "Although we have not seen the specific language of the Chairman’s proposal, in his remarks, Chairman Genachowski emphasized the appropriateness of recognizing differences between fixed and mobile broadband. While we maintain our belief that any action in this area is unnecessary in the dynamic and rapidly evolving wireless environment, we understand and are pleased that the proposed rules have moved away from broad Title II regulation and toward a more tailored approach that recognizes the unique nature of wireless services. The wireless ecosystem moves at a startling pace, and if new rules are adopted, they should be reviewed in two years."

Information Technology and Innovation Foundation Senior Research Analyst Richard Bennett said, "We believe the Chairman’s plan will be broadly supported, and for good reasons. We also believe the plan will help tamp down the often acrimonious controversy over how to best oversee the development of the Internet, establish regulatory clarity, and promote investment in faster and more pervasive broadband networks."

Casey Rae-Hunter, Communications Director and Policy Strategist for Future of Music Coalition, said, "The two things that are most important to today’s musicians and creative entrepreneurs are innovation and access. Today’s announcement from Chairman Genachowski is an important step towards preserving that dynamic on the internet."

National Cable and Telecommunications Association President Kyle McSlarrow said that negotiations over the last sixmonths "produced a rough consensus on a number of points, which we believe are reflected in the order circulated today." The proposal is: 1) grounded within the framework of Title I, 2) basically codifies a code of conduct and commitments made by our industry five years ago, 3) adds a discrimination principle based on a “reasonableness” standard, and 4) adds a transparency rule that NCTA believes can be helpful in aiding customer choice. NCTA also notes that the rules will not and should not result in price regulation and to recognize the value of flexible business models such as usage based pricing.

"We appreciate the Chairman’s prudent decision to rely on the Commission’s Title I authority, rather than Title II, in promulgating consumer protection standards that are consistent with the way we conduct our businesses today, that parallel the Internet freedoms that Americans currently enjoy, and that lie largely within the narrow parameters of the legislative proposal developed earlier this year by House Energy & Commerce Committee Chairman Henry Waxman," said USTelecom President & CEO Walter B. McCormick Jr.



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