Time for the FCC to step up to the plate 

            We haven’t come very far in the five years since the FCC released its Policy Statement on Internet regulation.  The Policy Statement didn’t create any enforceable rules.  It didn’t impose any regulations.  Instead it announced that the FCC’s Internet regulatory role would be guided by noble principles to make sure the Internet developed as a consumer-centric open infrastructure, where creativity, innovation, experimentation, and open access flourished. 

            No one would argue with these principles: 

            -          Consumers are entitled to access the content of their choice. 

            -          Consumers are entitled to run applications and use services of their choice. 

            -          Consumers are entitled to connect devices of their choice.  

            -          Consumers are entitled to competition among network providers and content providers.  

            The Policy Statement responded to fears that if the owners of the pipes also provide content delivered through those pipes, the owners would control what gets sent through the pipes and who gets access to the pipes.    In an environment with limited through-put capacity, they would send their own content first, or deliberately degrade—or block altogether—the content of their rivals. 

            Great start.  But then the deregulatory binge of the prior administration got traction.  Cowing to the industry-led—and misleading--battle cry of “Don’t let the government regulate the Internet,” the FCC pussyfooted around instead of enacting regulations to assure consumers received the benefits promised in the 2005 Policy Statement.   The FCC timidly retreated to middle ground—“Regulation Light,” if you will—by classifying the Internet as an “Information Service” and thus not subject to the Commission’s robust Title II common carrier jurisdiction. 

            After five years of trying to get it right, and mostly getting it wrong, the FCC finds itself back at square one.  The D. C. Circuit Court of Appeals in the recent Comcast v. FCC decision rejected the Commission’s attempt to regulate network management practices—specifically Comcast’s deliberate interfering with its customers’ use of peer-to-peer networking applications-- under its vague ancillary Title I jurisdiction.  So the consumer safeguards, the security and privacy, the open structure promoting competition—all regulatory goals within the Commission’s power to assure—are put on hold while we reopen the net neutrality debate in 2010.  

            Let’s get it clear.  The government should not directly regulate the Internet, either through the FCC or any other agency.  Not the content, not the choice of device you want to connect, not the pictures you view, not the video clips you watch, not the game sites you visit, not the product you market, not the provider or device you choose to connect to the net, and not the price you pay for access.    

            But consumers are entitled to meaningful oversight of the infrastructure that allows access to the web.  Consumers deserve protection to make sure their choice of content is not burdened or restricted because their access provider—under the pretext of network management—openly or secretly restricts access.  Network operators should not be allowed to prioritize their own programming options over those of competitors just because they also control the “pipes” through which the net is accessed.  Network operators should not be allowed to degrade the transmission of their competitors’ content.    The infrastructure and architecture must be open and equally available to all, not designed and managed for profit enhancement and anti-competitive practices of the few big access providers. 

            Wireless broadband Internet access platforms now support many of the same applications and functions previously only available through DSL and cable modem access.  There were more than 59 million mobile devices capable of high-speed Internet access in use as of June 2008.  There are probably 100 million today.  How many were there five years ago?  As consumers increasingly access the web exclusively through their 3.5G and 4G mobile devices, the stakes for the mobile industry could not be higher. 

            The FCC has regulatory power under its Title II jurisdiction to assure that internet access providers do not discriminate in favor of their own traffic. 

            The FCC has regulatory power under its Title II jurisdiction to assure that the large access providers do not design or operate their networks in ways that restrict consumer choices or stifle competition. 

            The FCC has regulatory power under its Title II jurisdiction to assure the Internet remains an open platform without unnecessary and anticompetitive barriers. 

            But does the FCC have the resolve to assert Title II jurisdiction to regulate in a consumer friendly manner, to thumb its nose at the entrenched corporate interests who want to pad the bottom line?  Does it have the guts to take bold, necessary action to assure the benefits of an open Internet? 

            Or will the moneyed corporate interests dominate the conversation, mislead the public with fears of “government takeover” and block the FCC from acting effectively to protect the public’s interest in this critical communications infrastructure? 

            Stay tuned.