by Kevin Coates | Dec 10, 2009 | Net Neutrality
Erik Cecil’s recent post on net neutrality is generating discussion on several mailing lists. I agree with a lot of what Erik says – particularly summing up the underlying problem as “monopoly power in the loop plant”, a point which seems so obvious to my (European, antitrust-influenced) eyes, that I often stare with bemusement at some of the debates (and court judgments) in the US. But I wonder about the implied strategy of abandoning the net neutrality proposals in favour of some form of network access regulation. Calling for net neutrality to be abandoned because it does not address the most fundamental problem reminds me a little of the old joke about the tourist asking the local for directions and receiving the reply, “Well, I wouldn’t start from here.” Although the validity of the 1996 Telecom Act and its unbundling provisions has been upheld in principle, the various FCC attempts to implement unbundling in practice were struck down hard by the courts, seemingly giving little or no deference to FCC discretion. Then with the shift in approach of the FCC under the Bush Administration, came the broadband de-regulation measures of 2003-2005 where first the cable networks, then the telecoms broadband networks were moved out of the scope of Title II of the 1996 Act and into Title I, ruling out any form of mandated third party access. This was upheld in court, with a ruling that seemed to give the FCC significantly more margin for discretion in deregulating, than the FCC had been given in its earlier attempts at regulating: the most notable example, probably being the court agreeing...
by Kevin Coates | Oct 22, 2009 | Net Neutrality
The FCC has published its notice of proposed rule-making on net neutrality rules (see also News Release, Genachowski Statement,
Staff Presentation). Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service: 1. 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; 2. 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; 3. 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; 4. 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; 5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and 6. 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. One quick aside: the proposed rules are limited to broadband internet access providers: AT&T’s complaint against Google Voice will go nowhere. The relationship between this proposal and the FCC’s earlier deregulation of fixed broadband networks seems odd. In a range of decisions from 2003 to 2005, the FCC took cable, DSL and fibre out of the scope of access obligations under the 1996 Telecoms Act. The FCC then claimed that the broadband market...