ISP Critic’s Surprise: Voices Opposition to FCC Net Neutrality Mandate

Published March 4, 2010

The Electronic Frontier Foundation digital rights group has come out against the Federal Communication Commission’s efforts to craft neutrality rules. EFF helped expose one of the biggest violations of what many consider a key net neutrality principle, Comcast’s throttling of peer-to-peer traffic in 2008, and has long pressed for policies that would lead to more regulation of the Internet.

In comments filed with the FCC in February, the San Francisco-based organization said the agency lacks the authority to issue neutrality regulations that would ban Internet Service Providers (ISPs) such as Comcast from favoring some forms of Internet traffic over others.

“Congress has not deputized the FCC to be a free roving regulator of the Internet,” the group argued in a filing that came as a shock to net neutrality supporters such as the intensely pro-regulation “public advocacy” groups Free Press and Public Knowledge.

“So while EFF strongly endorses the goals of this commission … a limitless notion of ancillary jurisdiction would stand as an open invitation to future commissions to promulgate ‘policy statements,’ issue regulations, and conduct adjudications detrimental to the Internet,” EFF wrote.

FCC Head Scoffs
FCC Chairman Julius Genachowski told The Wall Street Journal in mid-February he “gets a little peeved when people suggest that [I] want to regulate the Internet.”

“I don’t see any circumstances where we’d take steps to regulate the Internet itself,” Genachowski said. “I’ve been clear repeatedly that we’re not going to regulate the Internet.”

Bruce Mehlman, former assistant secretary of commerce for tech policy and co-chairman of the Internet Innovation Alliance (IIA) in Washington, DC, a coalition of business and nonprofit organizations, said the FCC’s involvement in Internet regulation could end up suppressing innovation.

“Even if the FCC has the best intentions, unintended consequences are likely because regulation can’t keep pace with innovation,” Mehlman said.

Setting Regulatory Boundaries
The question is how far the FCC wants to try to go in regulating the Internet, said Mehlman. He compares the power the agency tried to flex under the direction of the more market-friendly former Chairman Kevin Martin—which nonetheless sued Comcast over bandwidth throttling—to the current regime, which seems to believe its mandate to regulate is more sweeping.

“The courts are trying to resolve this question,” Mehlman said. “If the FCC lacked the authority under Chairman Martin, then they lack it under chairman Genachowski. The Comcast case will help determine this.

“Wading into the area of net neutrality could have adverse consequences for jobs and investment and could be a distraction from [the FCC’s] work on broadband [stimulus],” he added. “It all depends on how aggressive and interventionist they intend to be. Basic rules are necessary. Regulations tend to be the most valuable when necessitated by actual events.”

Mehlman doesn’t see any major events warranting more Internet regulation by the FCC, even if a federal court eventually rules the FCC has such broad jurisdiction.

Authority Questioned
Steven Titch, a telecom policy analyst for the Reason Foundation in Los Angeles, said he was not as surprised as others were at the EFF’s market-friendly stance on net neutrality regulation by the FCC.

“EFF wants to see the growth of the Internet business, though they do put a premium on consumer rights,” Titch said. “They recognize that the FCC’s plans for net neutrality will not provide a free and open Internet, but a regulated Internet.

“The FCC does not have a mandate from Congress to regulate the Internet,” Titch said. “They were founded to regulate the airwaves. They are trying to justify their regulation of the Internet because they regulate some of the companies involved because those companies have business over the public spectrum.

“If the FCC starts regulating the Internet, it will raise barriers to entry and to growth,” Titch added.

Phil Britt ([email protected]) writes from South Holland, Illinois.