In 2006 we wrote a paper about Internet Access and Neutrality and in it we addressed the issue of what can a carrier do with packets that they transport across their network. We stated then and believe that it holds now that two facts are in evidence; (i) there is no express law delimiting the actions of any carrier and (ii) there is a basis in tort law which allows remedies in the even that a harm is done. Thus we stated that with no Federal Statue in place the best one could do was to wait until harm was done and then sue under one or several torts.
Now along comes the current FCC. One must remember that the FCC reports to Congress and is NOT part of the executive. Its current Chairman in line with the current President seems to be moving in the direction of establishing an Administrative law, which he can then enforce with his executive powers and administer via his Administrative courts to ensure what he perceives is net neutrality. It is akin to the FCC being a ruling authority unto itself.
In the Chairman's recent talk he stated:
"...I believe the FCC must be a smart cop on the beat preserving a free and open
Internet.
This is how I propose we move forward: To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as:
Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.
The principles were initially articulated by Chairman Michael Powell in 2004 as the “Four Freedoms,” and later endorsed in a unanimous 2005 policy statement issued by the Commission under Chairman Kevin Martin and with the forceful support of Commissioner Michael Copps, who of course remains on the Commission today. In the years since 2005, the Internet has continued to evolve and the FCC has issued a number of important decisions involving openness. Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness....
The fifth principle is one of non-discrimination -- stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed....
The sixth principle is a transparency principle -- stating that providers of broadband Internet access must be transparent about their network management practices. Why does the FCC need to adopt this principle? The Internet evolved through open standards. It was conceived as a tool whose user manual would be free and available to all. But new network management practices and technologies challenge this original understanding. Today, broadband providers have the technical ability to change how the Internet works for millions of users -- with profound consequences for those users and content, application, and service providers around the world."
These are laudable principles and in fact ones which we would support. However the FCC has no basis in law to promulgate them into the Administrative law code. It seems as if the Chairman has decided unilaterally to become the ruler of the cyber world! What basis does he have to make these laws. In fact the FCC has ruled in multiple previous cases that the provision of Internet services was unregulated, beyond their jurisdiction and the Courts have supported such decisions. Thus one wonders what has changed in the law to give the FCC this authority. Or are we to expect that the FCC will rule, set the Administrative law in place, disrupt the industry, find itself in Court and over ruled again, with the net result being a massive cost to our economy. Perhaps it may be time to disband the FCC.
Now to some specific issues:
1. Why does the FCC believe it should apply these rules to wireless? The wireless carriers bought their spectrum, mostly at auctions. One need just look back at the PCS auctions of the mid 1990s and the rules that applied allowed the owners of this property the right to do whatever they wanted. There was not even an expectation of any regulation. This would be ex post facto and frankly illegal. What is the basis for this attempt by the FCC to delimit a property right? It violates the "takings clause" of the Constitution!
2. Wireless spectrum is limited and what right does the FCC have in unilaterally re-allocating it? The wireless spectrum is limited and demands real time spectrum management. Having been in this business for almost half a century this fact has been drilled home many times. What new divine revelation has come to the FCC Chairman to permit him to see beyond the laws of nature, perhaps his law degree has facilitated insight that engineers have missed!
3. There are costs in access, and the more access one uses the more costs are incurred. Who pays for those costs? It appears as if the FCC forgets that the Internet is not free. In the original model of the Internet there was an assumption of parity of usage. Namely that all users were pari passu in what they did, there were no data hogs. In today's world there are obese Internet users, the data hogs, those who download and upload massive amounts of video, thus loading up the network, and costing others. The carrier should be allowed to charge them. Yet the carrier at the same time should not use this as an excuse to gouge everyone else!
These are just a few questions. But as anyone familiar with the FCC process, the NPRM is just a fig leaf. The Chairman has already written his rules and has reached a conclusion. In fact he is so forthright to even state this as such:
"I’ve talked about what we need to do; now I’d like to talk about how we should do it. I will soon circulate to my fellow Commissioners proposed rules prepared by Commission staff embodying the principles I’ve discussed, and I will ask for their support in issuing a notice of proposed rulemaking. This notice will provide the public with a detailed explanation of what we propose to do and why."
We suspect that the next steps will be litigation and a costly battle!
Now along comes the current FCC. One must remember that the FCC reports to Congress and is NOT part of the executive. Its current Chairman in line with the current President seems to be moving in the direction of establishing an Administrative law, which he can then enforce with his executive powers and administer via his Administrative courts to ensure what he perceives is net neutrality. It is akin to the FCC being a ruling authority unto itself.
In the Chairman's recent talk he stated:
"...I believe the FCC must be a smart cop on the beat preserving a free and open
Internet.
This is how I propose we move forward: To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as:
Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.
The principles were initially articulated by Chairman Michael Powell in 2004 as the “Four Freedoms,” and later endorsed in a unanimous 2005 policy statement issued by the Commission under Chairman Kevin Martin and with the forceful support of Commissioner Michael Copps, who of course remains on the Commission today. In the years since 2005, the Internet has continued to evolve and the FCC has issued a number of important decisions involving openness. Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness....
The fifth principle is one of non-discrimination -- stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed....
The sixth principle is a transparency principle -- stating that providers of broadband Internet access must be transparent about their network management practices. Why does the FCC need to adopt this principle? The Internet evolved through open standards. It was conceived as a tool whose user manual would be free and available to all. But new network management practices and technologies challenge this original understanding. Today, broadband providers have the technical ability to change how the Internet works for millions of users -- with profound consequences for those users and content, application, and service providers around the world."
These are laudable principles and in fact ones which we would support. However the FCC has no basis in law to promulgate them into the Administrative law code. It seems as if the Chairman has decided unilaterally to become the ruler of the cyber world! What basis does he have to make these laws. In fact the FCC has ruled in multiple previous cases that the provision of Internet services was unregulated, beyond their jurisdiction and the Courts have supported such decisions. Thus one wonders what has changed in the law to give the FCC this authority. Or are we to expect that the FCC will rule, set the Administrative law in place, disrupt the industry, find itself in Court and over ruled again, with the net result being a massive cost to our economy. Perhaps it may be time to disband the FCC.
Now to some specific issues:
1. Why does the FCC believe it should apply these rules to wireless? The wireless carriers bought their spectrum, mostly at auctions. One need just look back at the PCS auctions of the mid 1990s and the rules that applied allowed the owners of this property the right to do whatever they wanted. There was not even an expectation of any regulation. This would be ex post facto and frankly illegal. What is the basis for this attempt by the FCC to delimit a property right? It violates the "takings clause" of the Constitution!
2. Wireless spectrum is limited and what right does the FCC have in unilaterally re-allocating it? The wireless spectrum is limited and demands real time spectrum management. Having been in this business for almost half a century this fact has been drilled home many times. What new divine revelation has come to the FCC Chairman to permit him to see beyond the laws of nature, perhaps his law degree has facilitated insight that engineers have missed!
3. There are costs in access, and the more access one uses the more costs are incurred. Who pays for those costs? It appears as if the FCC forgets that the Internet is not free. In the original model of the Internet there was an assumption of parity of usage. Namely that all users were pari passu in what they did, there were no data hogs. In today's world there are obese Internet users, the data hogs, those who download and upload massive amounts of video, thus loading up the network, and costing others. The carrier should be allowed to charge them. Yet the carrier at the same time should not use this as an excuse to gouge everyone else!
These are just a few questions. But as anyone familiar with the FCC process, the NPRM is just a fig leaf. The Chairman has already written his rules and has reached a conclusion. In fact he is so forthright to even state this as such:
"I’ve talked about what we need to do; now I’d like to talk about how we should do it. I will soon circulate to my fellow Commissioners proposed rules prepared by Commission staff embodying the principles I’ve discussed, and I will ask for their support in issuing a notice of proposed rulemaking. This notice will provide the public with a detailed explanation of what we propose to do and why."
We suspect that the next steps will be litigation and a costly battle!
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