FCC questions how to enforce net neutrality rules

The U.S. Federal Communications Commission needs to create explicit rules that tell broadband providers what traffic management techniques they can and cannot use if the agency has any hope of enforcing its proposed net neutrality rules, some advocates told the agency Friday.

The FCC needs to reclassify broadband as a common-carrier, public utility service in order to have a firm regulatory foundation to take net neutrality enforcement actions, representatives of Kickstarter and Mozilla said during an agency forum on net neutrality enforcement.

The FCC needs strong prohibitions against broadband providers selectively blocking or slowing Web traffic, said Susan Crawford, a visiting intellectual property professor at Harvard Law School. She called on the FCC to pass net neutrality rules pegged to Title II of the Communications Act, a section of the law that has focused on requirements for common-carrier telephone companies.

“Consumers are really collateral damage in some Titanic battles between these terminating [broadband] monopolies at the interconnection points and edge providers,” said Crawford, a longtime net neutrality advocate. “The government is the only entity that can take on these companies.”

The FCC’s mission is to protect the public trust, and that focus trumps the profit motive of a handful of large broadband carriers “every time,” Crawford added. “The only reason to water down very strong net neutrality rules under Title II would be to serve the commercial interests of the carriers,” she added.

Earlier this year, after a U.S. appeals court threw out parts of the FCC’s 2010 net neutrality rules, agency Chairman Tom Wheeler proposed new rules that would allow broadband providers to engage in what he called “commercially reasonable” network management. Advocates of strong rules have criticized Wheeler’s proposal, saying it would allow broadband providers to selectively slow Internet traffic and charge Web content providers for priority traffic handling.

Representatives of two broadband trade groups opposed calls for the FCC to adopt public utility-style rules, saying the dozens of regulations in Title II would create a long and expensive process for net neutrality complaints.

The National Cable and Telecommunications Association, a trade group representing cable broadband providers, supports “reasonable” net neutrality rules at the FCC, but the agency should focus on adopting overarching principles and enforcing violations on a case-by-case basis, said Rick Chessen, the NCTA’s senior vice president for law and regulatory policy.

The FCC needs to be flexible with enforcement as Internet business models change, instead of adopting “prophylactic, prescriptive rules,” Chessen said. “We don’t know which way this fast-moving Internet is going,” he said. “We don’t know how it’s evolving. We don’t know what it’s going to look like two months from now, let alone two years from now.”

New traffic management rules would pose “significant real” costs for the approximately 3,000 small wireless ISPs across the U.S., added Stephen Coran, a lawyer representing the Wireless Internet Service Providers Association. WISPs have “no record of bad behavior” related to net neutrality, he said.

The FCC can recognize the value of small ISPs by “not saddling them with a one-size-fits-all regulatory approach that will increase costs, deter investment, stifle innovation and slow the deployment of critically important broadband service,” Coran said.

Coran called for “regulatory certainty” that defines reasonable network management practices that ISPs are allowed to use, and he called on the FCC to require “good faith” negotiations between groups complaining about potential net neutrality violations and ISPs before a formal complaint can be filed.

In its 2010 rules, the FCC “created a vast, grey area where it’s very difficult to quantify the risk and assess the risk,” he said. “If you’re a small ISP, and you’re looking for money, and the banker says, ‘I see you have this net neutrality complaint, tell me what that means,’ I can’t sit there and say it’s a $1 problem or a $1 million problem.”

Title II regulation is needed because of the market power and resources of Comcast, AT&T, Verizon Communications and Time Warner Cable, countered Michal Rosenn, the lone corporate lawyer at Kickstarter. Many Web-based services don’t have the money to engage in protracted net neutrality fights with the largest broadband providers, she said.

Without strong net neutrality enforcement, broadband providers could drive Web startups out of business before the FCC rules on case-by-case violations, she said.

“Unlike the carriers, or even companies like Netflix, we don’t have billions or even millions of dollars and hundreds of lawyers to devote to just making sure we can get our product out there,” Rosenn said. “The imbalance of power here is so enormous that our ability to even exist is based on these rules, and based on the ability to have strong, bright line rules.”

Copyright © 2014 IDG Communications, Inc.

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