The DCIA believes that the Federal Communications Commission (FCC) exceeded its authority and acted without proper Congressional approval by promulgating net neutrality regulations that took effect last year after being narrowly passed by a 3-2 vote in December 2010.
The Court of Appeals for the DC Circuit previously ruled in a case involving Comcast that the FCC lacked authorization to regulate broadband, which is currently considered an information service rather than a telecommunications service.
Instead of proceeding with caution after the court ruling, the Commission moved ahead with its open Internet order, considered by many at the time to be a “reckless power grab,” imposing additional restrictions and discriminating between wireline and wireless access providers, while excluding major portals, app store operators, search engines, and others.
The FCC’s regulations also require broadband Internet providers to disclose information about their network management practices, which in itself could be an important component of a more fully developed and properly sanctioned program to ensure transparency.
The two operators originally filed suit against the Commission’s rules in early 2011, only to have their complaint dismissed on a technicality. The suit was re-filed, and in March the court allowed the challenge to proceed after dismissing the FCC’s request for a delay.
The companies argue that the rules should be vacated because they conflict with the Communications Act, are outside the FCC’s authority, and violate constitutional rights.
In a more difficult argument, the telecoms’ appellate brief also contends that the regulations violate their free speech rights because they strip providers of control over what they transmit and how they transmit it, and compel carriage without compensation.
Their point is that other major gatekeepers to Internet-based content are excluded from this anti-discrimination requirement. Whether others should be included, or whether there should be different standards for different participants in the web ecosystem remains an unanswered but important issue at this juncture.
This also opens a more complex set of considerations, including placement of liability for copyright infringement and the question of censorship, which need far more discussion in the context of an acceptable regulatory process.
In addition, the concerns voiced by both independent (as opposed to carrier-owned) content providers and public advocacy groups regarding fair and equitable treatment of Internet data remain unanswered.
From the DCIA’s perspective, which is focused on commercial advancement of distributed computing over the Internet and other networks, the FCC’s movements here have been in no way beneficial.
Without a more comprehensive approach, too much marketplace uncertainty remains, and private sector interests and the public at large would be better served by vacating the Commission’s current rules.
The FCC’s regulations, which ban all Internet access providers from blocking sites or competing applications and impose greater restrictions on those that do so through wireline networks, may have been well intended, but were clearly premature and incomplete. The basic problem, as noted above (and at the time it was issued) is that the FCC’s order imposes classic common-carrier obligations on broadband providers, which is prohibited by the Communications Act.
Further complicating this issue, the advocacy group Free Press, which also sued the FCC contending that it acted arbitrarily in adopting different standards for wireless and wireline providers, this week withdrew its lawsuit rather than file a brief in the case.
The group isn’t satisfied with the neutrality regulations, but decided to drop the litigation; which it was pursuing in order to improve the rules and not contest the FCC’s authority or basis for imposing them.
Free Press and a coalition of more than 100 organizations, academics, start-up founders, and tech innovators instead launched the Declaration of Internet Freedom — five principles outlining the basic freedoms that all Internet users should enjoy. This effort is meant to spark a passionate, global discussion among Internet users and communities about the Internet and our role in protecting it.
What is needed is a complete reworking on the now outdated Communications Act in light of today’s Internet and the business realities of providing access and fostering continued investment and innovation.
If the court simply overturns the FCC’s regulations, wireless and broadband Internet providers could be allowed to block online content and competing services, and that would not be a good thing. And the potential for consumer net users and digital content providers to benefit from more advanced and flexible services could be curtailed if the court doesn’t do so, and that would be bad, too.
The FCC’s response to the telecoms’ brief is due in September. Meanwhile, if you agree that Expression, Access, Openness, Innovation, and Privacy are principles that should be secured for the Internet globally, please sign the Declaration of Internet Freedom. Share wisely, and take care.