Copps Urges FCC to Sink Teeth into Net Neutrality

A net neutrality “championship bout” will take place this year or next, and the FCC shouldn’t be “watching from the sidelines,” Copps said. The Internet is becoming the backbone for other telecom services, he said. It’s “time to get in the thick of the fray before we find out the decisions have been made for us.” Copps urged a “clearly articulated,” “enforceable” principle of nondiscrimination that keeps up with technology change. The FCC should judge discrimination case by case, he added.

Broadband competition isn’t enough to keep carriers from discriminating against net traffic in an anti-competitive way, said Marvin Ammori, Free Press general counsel. Most markets see a “cozy duopoly” of DSL and cable providers who together own more than 90 percent of the market, he said. Switching between the two options can mean “a lot of pain and hassle,” said Media Access Project’s Harold Feld. In such “imperfect competition,” ISPs have “incentive to discriminate,” Ammori said, calling regulation the solution.

A highly concentrated broadband market doesn’t mean that market is failing, said Phoenix Center President Lawrence Spiwak. Telecom is a “very expensive business,” he said. It’s unclear if there is an anti-competitive incentive to block access, he added. Rather, net management may be merely an “externality” of congestion, he said. PFF President Ken Ferree called broadband a “fiercely competitive market.” Most markets offer at least three options, he said, citing satellite broadband as one alternative. “The worst thing we can do is impose regulation” that discourages investment, he said.

It’s “flat-out wrong” to call regulation “evil,” said Feld. Regulation led to the “vibrant and competitive” Internet market of the late ‘90s, he said. Ferree doesn’t deem the ‘90s the “good old days,” he said, adding that the Internet has “thrived” in today’s lightly regulated environment.

Management is appropriate because net resources aren’t unlimited, said Ferree. Allowing a “free for all” in which consumers can use as much bandwidth as they want will cripple the network, he said. Charging premiums for bandwidth-heavy users could work, but more consumer tests are needed, he said. Blocking programs isn’t as anti-competitive as neutrality supporters say it is, said Ferree, comparing app blocking to a Safeway not stocking Green Giant vegetables. That analogy is unfair, said Feld. There’s an “enormous difference between groceries in a competitive grocery store market and how we handle our critical infrastructure,” he said.

ISPs could manage a network without blocking specific apps, Ammori said. Blocking competitors or unaffiliated apps is “bad for society” and against “common sense,” he said. Blocking doesn’t target only “bandwidth hogs,” but also anyone using the app, he said. Management should be put in users’ hands, Feld said. For example, ISPs could charge premiums for users wanting to use lots of bandwidth at peak hours, he said.

Disclosure requirements would be acceptable and the FCC has “ample authority” to do so, said Spiwak. Disclosure might not suffice, Feld said. Most people skim fine print, and may be confused by ads for “all-you-can-eat buffets,” he said. And lack of competition means they might not have alternatives, he said.

Net neutrality legislation backers make “a lot of allegations but not a lot of facts or analysis,” said Ferree. The debate, while fast-moving and highly political, isn’t “grounded… in solid analysis,” agreed Spiwak. Debate is largely “driven by emotion and rhetoric,” he said. More research is needed to determine how best to alleviate net congestion without hurting free speech or competition, he said.