Commentary

Does FCC Have Authority To Issue Neutrality Regs? Digital Rights Advocates Disagree

The digital rights group Electronic Frontier Foundation helped expose one of the biggest net neutrality violations to date -- Comcast's deliberate throttling of peer-to-peer traffic.

But that doesn't mean the EFF supports the Federal Communications Commission's efforts to craft neutrality rules. In comments filed today, the civil rights organization says the FCC lacks authority to issue neutrality regulations that would ban ISPs from discriminating against content.

"Congress has not deputized the FCC to be a free roving regulator of the Internet," the group argues. "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."

The EFF has warned of this prospect before. The day before the FCC proposed rules to ban Internet service providers from discriminating -- similar to the common carrier rules that govern telephone services -- the EFF sounded the alarm about a government "power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post."

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Meanwhile, a coalition of other advocacy groups including Public Knowledge, Media Access Project, New America Foundation, Center for Media Justice and Consumers Union, is arguing the exact opposite.

Those organizations say the FCC currently has authority to ban ISPs from discriminating. But they also argue that the FCC could end any doubt about the issue by simply reclassifying Internet access as a common carrier service -- as had been the case until 2005. "A reclassification would not include a return to full price regulation, but would protect consumers and allow for increased competition, among other benefits," the groups argued in a statement issued this afternoon.

Should the FCC go ahead and enact neutrality rules, cable and telecom companies are certain to ask a court to invalidate those regulations on the ground that the commission lacked jurisdiction for them.

In fact, a court might decide that issue before the FCC even finishes with its rulemaking. Last week, a federal appeals court indicated that it was considering whether to vacate an FCC order sanctioning Comcast for interfering with peer-to-peer traffic on the ground that the FCC had no authority to regulate the Web.

Of course, even that wouldn't end the debate over whether ISPs should have to follow neutrality rules -- but it would shift the discussion to Congress. So far Congress has shown no inclination to enact neutrality legislation. That might change, however, if courts rule that the FCC can't create neutrality rules without an assist from elected officials.

2 comments about "Does FCC Have Authority To Issue Neutrality Regs? Digital Rights Advocates Disagree ".
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  1. Marty Lafferty from DCIA, January 15, 2010 at 11:32 a.m.

    On Thursday, January 14th, the DCIA submitted our comments to the US Federal Communications Commission (FCC) in the matters of Preserving the Open Internet (GN Docket No. 09-191) and Broadband Internet Practices (WC Docket No. 07-52).

    The DCIA has sponsored and facilitated the P4P Working Group (P4PWG) since July 2007.

    P4P is defined as a set of business practices and integrated network topology awareness models designed to optimize ISP network resources and enable P2P based content payload acceleration.

    DCIA Member companies are engaged in developing and deploying competitive commercial services that use P2P and related technologies, including cloud computing, downloadable file sharing, live P2P streaming, swarming, caching, torrenting, content acceleration, peer-to-peer television (P2PTV), and hybrid P2P content delivery network (CDN) offerings, among others.

    DCIA Member companies are also engaged in creating, aggregating, and delivering content, representing music, video, games, and software categories.

    And finally, DCIA Member companies are engaged in providing and supporting Internet access services, including the most rapidly expanding and highest value area within the telecommunications sector, broadband or high-speed offerings.

    DCIA Member companies and other competitive distributed computing applications and services represent the technologically most advanced and fastest growing segment for delivery of digital content over the Internet.

    The DCIA strongly supports the FCC’s principles that emphasize the importance of an open Internet as a vehicle for empowering consumers, putting users at the forefront of deliberations as to whether broadband networks are operating appropriately, without discriminating against institutional users of network resources; and whether such applications and services, as well as content providers themselves are operating appropriately, without abusing these network resources.

    Our concern is that the uncertainty associated with the Commission’s current rulemaking process has caused US-based industry participants to curtail their participation in the P4PWG, an important and effective process, which had been addressing key areas of broadband network resource utilization and related P2P software functionality, and to reduce their involvement to a wait-and-see status until this can be clarified.

    P4P has been successfully field-tested by AT&T, Comcast, and Verizon Communications, for example, working with Pando Networks and Yale University; and key results of these trials have been published.

    As is clearly illustrated by the contrast in the 2007-through-2008 versus the 2009 track record of accomplishments of the P4PWG, which was very active with US-based field trials, sub-group expansion, standards-setting activities, and related steps demonstrating substantial progress during the former period, these efforts have essentially moved offshore during the latter period.

    The FCC has an important role to play in ensuring that the Internet continues to develop to its fullest potential as an open, competitive environment for innovative services that will benefit consumers.

    The intention of establishing the P4PWG was to formulate an approach to P2P network traffic management as a joint optimization problem. The objective of certain participating ISPs, for example, was to minimize network resource utilization by P2P services. The objective of certain participating P2P software firms, conversely, was to maximize throughput. The joint objective of both ISPs and P2P software developers was to protect and improve their customers' experience.

    2007 marked a turning point for the emerging P2P industry, with P2P beginning to become part of the content delivery infrastructure in large scale deployments, and content owners increasingly indicating a preference for integrated P2P and CDN solutions. Major content and CDN players started to select P2P technology partners to enhance their service offerings.

    Meanwhile, Internet traffic between the years of 2000 and 2007 saw P2P grow from virtually non-existent to representing as much as 50-65% of downstream traffic and 70-80% of upstream traffic in many locales.

    At its highest level, the P4PWG represents the opportunity for partnerships among ISPs and P2P networks to address this. There are currently more than 50 active participating companies in the P4PWG representing ISPs, P2P software distributors, researchers, and service-and-support companies. In addition, there are now approximately 50 observers, representing vendors, cable multiple system operators (MSOs), content providers, and other interested parties.

    P4P can provide the way to solve a pending bandwidth crisis before it becomes a serious threat and provide a means to collaboratively and cooperatively address future capacity concerns. There is the potential to have carrier-grade P2P with P4P, which in turn can open opportunities for innovative new services, once it has been established that the fastest path from point A to point B on a network is via P4P-enhanced P2P.

    Benefits to consumers will include faster downloads, higher quality of service (QoS), and potential assurances of not being subject to service interruptions or degradation.

    In short, P4P can enable content delivery that is more efficient for both the consumer and the network operator compared to alternative architectures.

    To that end, the DCIA recommends that the Commission encourage network operators, Internet companies, content rights holders, consumer groups, and other interested parties to discuss a variety of reasonable network management practices using private sector forums such as the P4PWG as well as public platforms.

    It would not be inappropriate for ISPs to receive appropriate compensation from content providers using P2P for the services and delivery enhancements that ISPs may offer to them through capabilities like P4P. Alternate, flexible financial arrangements may assist ISPs by providing the appropriate financial incentives to add significant capacity for such services in better alignment with traffic demands.

    The DCIA recognizes that, given the inherent dynamism and rapid growth of the Internet, flexibility is a critical component of network management. Therefore, the Commission should avoid adopting strict network management rules that could preclude new opportunities for collaboration and new business models between ISPs and application providers that would help to improve the experience of end-users accessing the applications and content of their choice over the Internet.

    In light of the rapid growth in this area, the scope of its impact on important consumer services and the commercial value of the offerings thereby represented, and the potential impact of this area of activity on other vital Internet services, the FCC should seek to provide consumers, ISPs, and applications, services, and content providers with clarity regarding what to expect with respect to broadband network management practices.

    Uncertainty associated with the Commission’s current rulemaking process in this area has caused US-based industry participants to temporarily reduce their active involvement is an important and effective process, which had been addressing key areas of broadband network resource utilization and related P2P software functionality under the auspices of a voluntary private sector initiative, and to slow the pace of progress.

    The accomplishments of US firms contributing to the P4PWG from 2007 through 2008 far exceeded their successes in 2009. US-based field trials, sub-group expansion, standards-setting, and related activities demonstrating genuine productivity have essentially moved offshore.

    We respectfully request that the FCC act to provide the needed certainty and offer the required clarity.

  2. Brett Glass from LARIAT, January 17, 2010 at 12:23 p.m.

    The "DCIA" (whose name is deceptive; the software its members peddle has nothing at all to do with "distributed computing") is merely a front for software makers whose programs perform piracy -- in short, distributors of digital burglary tools. Don't buy its nonsense.

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