Stevens Bill IV –The Bad Stuff (Network Neutrality)

Finally, we get to this week’s big enchilada, Network Neutrality (or “NN,” as we policy wonks like to call it when we type it over and over and over again).

Many have opposed the Communications Enhancement Act of 2006 (COPE) because it would limit FCC authority to prevent abuses of market power by the few broadband ISPs in control of the “last mile”. Well, the Stevens Bill would not just limit FCC authority, it would eliminate it altogether. A dream for the telcos, cable cos and my opposite numbers at Progress and Freedom Foundation, a nightmare for the rest of us.

At last, we come to the Stevens Bill impact on Network Neutrality (Title IX of the bill).

Stevens goes further than the House Bill (COPE) in stripping the FCC of authority. The House Bill stripped the FCC of any power to create network neutrality rules, limits the FCC to enforcing its rather vague Broadband Policy Statement by case-by-case complaints. (The four principles: consumers should be able to access all legal content, consumers should be able to use all legal applications and services of their choice, consumers should be able to attach any device to the network that won’t harm the network, and consumers should be able to enjoy competition.) COPE also appears to endorse charging third parties for “premium” access to subscribers (what I call “Whitacre tiering,” after AT&T CEO Ed Whitacre who first popularized the concept).

Apparently, this is just too much gosh-darn government interference and heavy handed regulation for Senator Stevens. The Stevens Bill removes the ability of the FCC to even adjudicate complaints about violations of the “four principles” contained in the Broadband Policy Statement. In other words, if an broadband ISP tells you “sorry, no using Vonage, but you can use our VOIP product,” or “no attaching an Apple wireless router to our network because we have an exclusive deal with Cisco to use only Lynksis,” Senator Stevens thinks that’s just fine.

Instead, under the Stevens Bill, for the next five years, the FCC’s only job will consist of writing an annual report to Congress about “the developments in Internet traffic processing, routing, peering, transport, and interconnection.” The FCC will also describe how these developments impact the “free flow of information over the public Internet, business relationships between broadband service providers and applications and online user services, and the development of and services available over public and private internet offerings.”

And, lest the FCC get any ideas, the report “may not recommend additional rulemaking authority for the Commission.” So even if the Commission report finds something wrong, the best it can do is recommend “appropriate private enforcement mechanisms.”

I will pause for a moment to marshall my thoughts. There is just so much wrong here that trying to figure out what order to present the wrongheadedness in causes some serious brain overload.

I’ll start with a simple definitional question: WHAT THE #@$! IS THE “PUBLIC” INTERNET and how do I distinguish it from the “private” Internet? For about a year now, the telcos and cable cos have floated this “public internet” idea as justification for distinguishing between their own “private” networks (where they can do whatever they want) and some mythical “public” internet where, presumably, all this “cyberspace stuff” happens.

As a rhetorical trick, it’s cute and it obviously worked. As statutory language, it creates some problems. Every other section of the Communications Act that defines “the Internet” (as well as various court cases) describes the Internet as a “network of networks” using TCP/IP or any successor protocol to interconnect and pass information. While some of these networks may be owned by state or federal or local govenrment institutions, the overwhelmingly vast majority of the networks that carry internet traffic are privately owned. All the supposedly “public” stuff that the telcos and cable cos talk about when they talk about the “public internet” (because it is accessible by the public) is carried on privately owned wires and equipment.

So figuring out what the heck this bill even means presents something of a challenge. Given Stevens apparent contempt for public ownership of networks, I don’t think he’s talking about impacts on munibroadband.

Moving beyond this, we come to the FCC authority issue. I understand (even if I disagree) with a philosophy that says “there’s no problem, regulation might screw things up, so don’t impose any regulation.” I find it mind boggling that anyone in Congress thinks stripping the FCC of the ability to prevent abuse of market power and stop anticompetitive behavior if someone can actually prove it’s happening is a good idea, especially if they intend to rely on the magic competition fairy to protect us by bringing us lots of competition after we deregulate. But the absolute icing on the cake is that the FCC can’t even recommend new regulatory powers to address abuses in its report to Congress if it finds compelling evidence that deregulation takes us to a serious bad place.

Finally, as regular readers know, I have a rather low opinion of FCC reports, as they usually turn into political exercises designed to confirm a predetermined result. So even the pathetic little crumb of comfort of a report has the kind of rancid feel to it that makes ants and cockaroaches turn up their noses.

Once again, I gotta marvel at a supposedly pro-consumer, pro-competition bill that works to protect a handful of big companies against competition while stripping regular folks of any means to protect themselves. Then again, this is the same Ted Stevens who refused to require the folks from the oil cartel to testify under oath last year.

At least he’s consistent.

Stay tuned . . . .

Previous Posts on Stevens Bill:
What to Like in the Stevens Bill: White Spaces and Program Access
Return of the Broadcast Flag
Impact on Municipal Broadband

Useful resource:
A Network Neutrality Primer

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