FCC Chairman Julius Genachowski this morning ushered in a new phase of the long-running Internet neutrality debate. Over the past few years, the FCC has established some basic principles in a “Policy Statement.” It has issued Notices of Inquiry on network practices and held public meetings on the topic. And it has accused Comcast of violating the Policy Statement, resulting in a pending lawsuit. But now, the FCC will seek to adopt actual rules.
Genachowski’s speech touched on many themes that CDT has been stressing for a long time. It is great to see that the FCC’s Chairman shares our perspective to such a remarkable degree. For example:
– The speech offered an excellent summary of why the Internet openness matters. It cited the direct link between “the freedom to innovate without permission” and the Internet’s remarkable success as a platform for innovation. This is the core point — there are numerous examples of individuals and startups launching major Internet innovations, and that can happen precisely because no permission from any gatekeeper is necessary.
– Genachowski observed that “[t]his is about preserving and maintaining something profoundly successful.” I think this is an important and under-appreciated concept. Some opponents of neutrality regulation have argued that antitrust law already provides a sufficient legal safeguard against harmful behavior by network operators. But as CDT argued in its recent comments on the national broadband plan, “broadband policy should not merely aim to protect against bad behavior and the abuse of market power. Rather, maximizing broadband requires the preservation of an affirmative good: the Internet’s unique ability to serve as a platform for upstart innovation and hypercompetition in online services and applications.” It is not at all clear that antitrust law would ensure the preservation of the characteristics that make the Internet such a successful platform.
– The two areas in which Genachowski called for new principles — non-discrimination and network management transparency — are matters that CDT has often cited as holes in the existing Policy Statement.
– Genachowski insisted that the FCC’s openness policies should extend to wireless Internet services, just as CDT advocated in its recent comments on the national broadband plan. Of course, wireless Internet access may present some different challenges and technical considerations than wire-based services, but Genachowski was clear that the rules could apply differently to wireless where appropriate. In short, wireless Internet services won’t be exempt, but rules need not be applied in a one-size-fits-all manner.
– The speech also noted that broadband providers should be allowed to offer “managed services” that may not be subject to neutrality rules — so long as such services “supplement — but [do] not supplant — free and open Internet access.” This too is a longstanding CDT theme, dating back to our initial 2006 paper on the subject. As CDT put it in 2007 comments to the Federal Trade Commission, network provider experimentation with services that do not follow the Internet’s open model should not be banned; rather, “experimentation with other models should not be allowed to crowd out the network structure that has proved so beneficial. Take the analogy of the Postal Service. Ordinary postal delivery can and does coexist with premium delivery services like FedEx. But as a policy matter, it has been important for the economy and for society to ensure that ordinary postal delivery is maintained at robust level of service quality. Premium services are fine so long as they are truly a separate and additional option, but problems may arise if they take resources away from ordinary postal delivery and thus degrade its reliability and usefulness.”
As it happens, CDT also has been wary of formal FCC rulemaking in this area. We have cautioned the FCC against adopting detailed rules and have argued that the best policy approach would be for Congress to provide a framework for FCC activity on neutrality by providing statutory authorization, guidance, and jurisdictional limits to protect against over-broad assertions of regulatory authority. Even with respect to this concern, however, Chairman Genachowski’s speech offers some comfort. He too cautions against “unduly detailed rules,” proposing instead to proceed on a “case-by-case basis.” (I’ve noted before, that even a case-by-case approach requires some kind of standard to measure behavior against — but presumably that’s what a new rulemaking would provide.) He also stresses that his proposal is about creating some “fair rules of the road for companies that control access to the Internet” rather than the pursuit of some more general conception of government regulation of the Internet. Focusing narrowly on the risk of gatekeeper control by those who provide the physical network access connections, and drawing a clear line between this and broader Internet regulatory authority, is crucially important.
Still, even if the policies themselves are narrowly targeted, it remains to be seen if their jurisdictional basis will be narrowly targeted too. Ultimately, CDT would like to see Congress provide the FCC with an explicit but limited grant of authority — in effect, giving the FCC a specific task but making it clear that the task sets no precedent for possible future efforts to assert regulatory authority over Internet matters more broadly. For now, though, CDT welcomes the return of this issue to the fore of the communications policy landscape.