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Net Neutrality FCC / FTC

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Network Neutrality
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Policy Statement: FCC Chairman Powell advocated during his tenure for facilities based broadband competition. When it was clear to him that there was a risk this was not going to happen, he released his Four Freedoms Network Neutrality principles. Under Chairman Kevin Martin, these principles were revised and released in an order, as a part of the FCC's DSL proceeding declaring Internet over DSL an information service. Prior to these statements, network neutrality principles took the form of common carriage and the Computer Inquiries.

Antitrust: Opponents of NN regulation argue that any market failures in this area can be resolved through antitrust actions. [Pepper ("we believe such anticompetitive behavior should be punished on a case-by-case basis")] [Farber

The FCC has taken several antitrust / merger related actions. 

  • The Network Neutrality provisions were integrated into the merger conditions of Verizon/MCI and SBC/AT&T; these merger conditions expired October 2007.
  • The AT&T / Bell South Merger was approved with network neutrality conditions.
  • Time Warner and Comcast acquisition of Adelphia (shout out ot Harold Feld for point this out)
    • para 223: "The Commission held out the possibility of codifying the Policy Statement's principles where circumstances warrant in order to foster the creation, adoption, and use of Internet broadband content, applications, services, and attachments, and to ensure consumers benefit from the innovation that comes from competition. Accordingly, the Commission chose not to adopt rules in the Policy Statement. This statement contains principles against which the conduct of Comcast, Time Warner, and other broadband service providers can be measured. [empahsis added] Nothing in the record of this proceeding, however, demonstrates that these principles are being violated by Comcast or Time Warner or that the transactions before us create economic incentives that are likely to lead to violations. Additionally, the vigorous growth of competition in the high-speed Internet access market further reduces the chances that the transactions are likely to lead to violations of the principles."

The FCC has been criticized, however, for addressing this issue through ad hoc proceedings, create a patch work of conditions, instead of establishing one well defined rule.

Proponents of NN will note that antitrust actions are heavy actions that can take multiple years and even decades.  These are actions that are taken between big players: AT&T versus MCI,  or AT&T versus the US Government,  or IBM versus the US Government.  Antitrust action is not something an individual consumer can utilize against their carrier; it is not something for a quick action.  Where there is a difference in negotiation powers, and were results need to be readily achieved, that is where public interest, consumer protection agencies such as the FCC and the FTC play a vital role.

Some expressed concern that antitrust solutions is basically closing the barn door after the horse is gone; the damage is already done and an antitrust litigation will not restore the injured companies to their original positions. This position has also been echoed by FCC Commissioner Copps.

Open Access: A precursor to the NN debate is the Open Access debate - this argument was put forth largely by independent ISPs who had plentiful access to consumers over the dial up networks, but knew that they would have difficulty getting access to consumers over closed broadband networks. Independent ISPs argued for access to the broadband networks so that they could over their Internet services to consumers on the same terms and conditions as the network infrastructure providers. The argument was premised largely on Computer II, which ruled that incumbent phone companies could offer Internet services, but if they did, they had to offer their transmission services to all other ISPs on the same terms and conditions. The incumbent could not bundle there telecommunications service with their email service forcing them to pay for the incumbents email service, even when they wanted the independent's email service.

Largely the FCC ruled that Internet over broadband services such as DSL and Cable are Information services and therefore incumbents do not have to unbundle their networks, providing just the transmission service to people who wanted to build new service. The one exception to this was the AOL / TW merger where the FTC ruled that AOLTW must provide access to its Internet over cable network to 12 independent ISPs including Earthlink. Joseph Was, Public Policy Counsel for Comcast, stated at the FTC NN Hearing in February that no ISPs took advantage of this provision and therefore it was a failure. To the contrary, 12 ISPs did sign up for the offering. Some of the ISPs said that they knew that they were getting a bad deal, but "I had to get on the bus - it was the only bus in town." The only way these ISPs would get broadband access to their customers over cable was through this deal. Either they went out of business because they did not offer broadband, or they take a risk on the AOLTW deal even though they were pretty sure they would still go out of business.

FCC Chairman Powell's "Four Freedoms"

As we continue to promote competition among high-speed platforms, we must preserve the freedom of use broadband consumers have come to expect. Thus, I challenge the broadband network industry to preserve the following “Internet Freedoms:”

Four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet:

Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:

Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
Freedom to Access Content: Consumers should have access to their choice of legal content;

consumers are entitled to access the lawful Internet content of their choice;

consumers are entitled to access the lawful Internet content of their choice. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;
Freedom to Use Applications: Consumers should be able to run applications of their choice; consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user's choice;

Freedom to Attach Personal Devices: Consumers should be permitted to attach any devices they choose to the connection in their homes; and

consumers are entitled to connect their choice of legal devices that do not harm the network; and consumers are entitled to connect their choice of legal devices that do not harm the network. would not be allowed to prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network;
  consumers are entitled to competition among network providers, application and service providers, and content providers.

consumers are entitled to competition among network providers, application and service providers, and content providers.

fn 15: The principles we adopt are subject to reasonable network management.

would not be allowed to deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers;
     

would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and

Freedom to Obtain Service Plan Information: Consumers should receive meaningful information regarding their service plans. (this principal does not carry forward to the 2005 versions)     would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

Proceedings


See FDR Four Freedoms | Audio | Text | Four Freedoms Poster | FDR Memorial

Regulatory Proceeding: The FCC first officially considered Network Neutrality issues in its Internet over Cable (Cable Modem Service) proceeding. Having concluded that Internet over Cable was an Information Service, the FCC released a Further Notice of Proposed Rulemaking in which it inquired, among other things,

Is the threat that subscriber access to Internet content or services could be blocked or impaired, as compared to content or services provided by the cable operator or its affiliate, sufficient to justify regulatory intervention at this time?

FCC 02-77 Order: Text | Word | AcrobatPDF ¶ 87. This proceeding remains open.

FCC Neutrality Proceedings
 
Framework for Broadband Internet NOI (Third Way) Closed
Network Neutrality NPRM released October 23, 2009 Closed
Joint Petition for a Declaratory Ruling that Text Messages are a Title II Service and fall under anti discrimination provisions. Comments Due Feb. 13, 2008. Replies Due Mar. 14.  
VUZE, Free Press Petitions Regarding Network Management and Comcast's blocking of the P2P service Bit Torrent Closed
Broadband Market Practices  
SKYPE has filed a petition with the FCC arguing that Part 68 CFR, also known as the Carterfone Decision, should apply to wireless telecommunications networks  
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands et al. , Second Report and Order, 22 FCC Rcd 15289 (2007); 47 C.F.R. § 27.16 Closed

Merger: AT&T agreed to be bound by the Network Neutrality principles as a part of AT&T / Bell South Merger Conditions. AT&T Inc. and BellSouth Corp. Application for Transfer of Control , Memorandum Opinion and Order, 22 FCC Rcd 5662, 5663, para. 2 (2007)

Closed

The Network Neutrality provisions were integrated into the merger conditions of (these merger conditions expired October 2007):

  • SBC Commc'ns, Inc. and AT&T Corp. Applications for Approval of Transfer of Control , Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 (2005);
  • Verizon Commc'ns Inc. and MCI, Inc. Applications for Approval of Transfer of Control , Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005)
Closed
Internet over DSL which included the Policy Statement on Broadband Internet Access Closed
Madison River Blocked Vonage Calls (resolved through settlement) Closed
Net over Cable NPRM Para 87 (cable open access) Closed
Computer Inquiries  

Hearings

    • Witnesses Opening Remarks
    • Panel 1
    • Ms. Justine Bateman Actress / Writer / Producer
    • Ms. Michele Combs Vice President of Communications Christian Coalition of America
    • Professor Lawrence Lessig Stanford Law School
    • Mr. Kyle McSlarrow President and CEO National Cable & Telecommunications Association
    • Mr. Patric Verrone President Writers Guild of America, West
    • Dr. Robert Hahn Executive Director, Center for Regulatory and Market Studies American Enterprise Institute
    • My FCC Presentation on the Future of Digital Media, Maverick 7/28/2008
  • 4/17/08 Public En Banc Hearing at Stanford University on Broadband Network Management Practices.

    Recorded Webcast: Audio-Only, Captioned | Audio/Video (third-party)
    Copps Statement: Word | Acrobat
    Adelstein Statement: Word | Acrobat
    Tate Statement: Word | Acrobat
    McDowell Statement: Word | Acrobat

    4/16/08 FCC Announces Agenda and Witnesses for Public En Banc Hearing at Stanford University on Broadband Network Management Practices. News Release: Word | Acrobat

    12:45 p.m. Panel Discussion 1 - Network Management and Consumer Expectations

    3:00 p.m. Panel Discussion 2 - Consumer Access to Emerging Internet Technologies and Applications

    • Introduction: Barbara van Schewick , Assistant Professor of Law, Stanford Law School
    • Jason Devitt , Chief Executive Officer, SkyDeck
    • Harold Feld , Senior Vice President, Media Access Project
    • George S. Ford, Chief Economist Phoenix Center for Advanced Legal & Economic Public Policy Studies
    • Brett Glass, Chief Executive Officer, Lariat.net (prohibits P2P on his wireless ISP)
    • Blake Krikorian , Chief Executive Officer, Sling Media
    • Jon Peterson , Co-Director, Real-Time Applications and Infrastructure (RAI), Internet Engineering Task Force
    • Gregory L. Rosston, Deputy Director, Stanford Institute for Economic Policy Research
    • Ben Scott, Policy Director, Free Press

    4:30 p.m. Public Comment Period

    6:30 p.m. Closing Remarks

    7:00 p.m. Adjournment

Lawrence Lessig to the FCC: "Neutral Networks Work"
Harold Feld at Stanford Hearing
Robb Topolski on Comcast TCP Resets
FCC Net Neutrality Hearing at Stanford by MediaCenter

  • Feb 25 Public En Banc Hearing in Cambridge, Massachusetts on Broadband Network Management Practices.
David L Cohen, Comcast, Cambridge
CAUGHT: Comcast Paying to Push Public Out of Internet Debate

Proceedings and Activities

FTC

Papers

Prior Activity

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