“Let me start with a quote,” said FCC Chairman Julius Genachowski yesterday, just before the commission voted along party lines yesterday (click here for more on that story) to adopt rules it hopes will preserve basic Internet values (GN Docket No. 09-191, WC Docket No. 07-52). “The Web as we know it [is] being threatened.” 

He was citing Tim Berners-Lee, the real inventor of the World Wide Web, who noted that thought in a recent article, adding more of the quote: “A neutral communications medium is the basis of a fair, competitive market economy, of democracy, and of science. Although the Internet and the Web generally thrive on lack of regulation, some basic values have to be legally preserved.”

Genachowski continued, “As we stand here now, the freedom and openness of the Internet are unprotected. No rules on the books to protect basic Internet values. No process for monitoring Internet openness as technology and business models evolve. No recourse for innovators, consumers, or speakers harmed by improper practices. And no predictability for Internet service providers, so that they can effectively manage and invest in broadband networks.” 

Prior to casting his vote in the affirmative, the chairman also mentioned the Order was backed by “30 prominent venture capitalists” who said “the lack of basic ‘rules of the road’ for what network providers and others can and can’t do is starting to hamper innovation and growth.” And then there were “more than two dozen leading technology CEOs” who chimed in with “common sense baseline rules are critical to ensuring that the Internet remains a key engine of economic growth, innovation and global competitiveness.”

So the FCC, which is almost sure to end up in court over some of the language contained in yesterday’s Order (the full text of which has not been released), has “fulfill(ed) its historic role as a cop on the beat to ensure the vitality of our communications networks and to empower and protect consumers of those networks,” he added. “Now at the same time, government must not overreach by imposing rules that are overly restrictive or that assume perfect knowledge about this dynamic and rapidly changing marketplace.”

The chairman also mentioned creating an Open Internet Advisory Committee that will help the FCC monitor the state of Internet openness and the effects of the new rules. “We’re also launching an Open Internet Apps Challenge on challenge.gov that will foster private-sector development of applications to empower consumers with information about their own broadband connections, which will also help protect Internet openness,” he concluded.?

The Commissioners Weigh In

After the vote, Genachowski’s colleagues on the dais released their own statement, which we excerpt below:

>>Commissioner Michael J. Copps (concurring): “It is my fervent desire that, with this Order, we start to write the next chapter in the great Internet success story—one of continued openness, innovation without needing permission from anyone, and expanded access for all Americans. We cannot afford to permit special interests to relegate the awesome opportunity-creating power of the open Internet into the sad history of ‘what might have beens.’  Allowing gigantic corporations—in many cases, monopoly or duopoly broadband Internet access service providers—to exercise unfettered control over Americans’ access to the Internet not only creates risks to technological innovation and economic growth, but it poses a real threat to freedom of speech and the future of our democracy.  

“There is more that I would have liked in this Order. I would have preferred a general ban to discourage broadband providers from engaging in “pay for priority”—prioritizing the traffic of those with deep pockets while consigning the rest of us to a slower, second-class Internet. I also believe we should have done more to strip loopholes from the definition of “broadband Internet access service” to prevent companies falsely claiming they are not broadband companies from slipping through. I also argued for real parity between fixed and mobile—read wireline and wireless—technologies.” 

>>Commissioner Robert M. McDowell (dissenting): “Not only is today the winter solstice, the darkest day of the year, but it marks one of the darkest days in recent FCC history. I am disappointed in these ‘ends-justify-the-means’ tactics and the doubts they have created about this agency…Using these new rules as a weapon, politically favored companies will be able to pressure three political appointees to regulate their rivals to gain competitive advantages. Litigation will supplant innovation. Instead of investing in tomorrow’s technologies, precious capital will be diverted to pay lawyers’ fees. The era of Internet regulatory arbitrage has dawned. 

“And to say that today’s rules don’t regulate the Internet is like saying that regulating highway on-ramps, off-ramps and its pavement doesn’t equate to regulating the highways themselves.

“My dissent is based on four primary concerns: Nothing is broken in the Internet access market that needs fixing. The FCC does not have the legal authority to issue these rules. The proposed rules are likely to cause irreparable harm. Existing law and Internet governance structures provide ample consumer protection in the event a systemic market failure occurs.”

>>Commissioner Mignon L. Clyburn (concurring): “It is my belief that we have made real progress in this proceeding, and through this Order, we are ensuring that the Internet will remain open for the benefit of many consumers.  After all, they are the ultimate beneficiaries of an open Internet.

“Left to my own devices, there are several issues I would have tackled differently.  As such, I am approving in part and concurring in part to today’s Order. First, I would have extended all of the fixed rules to mobile, so that those consumers who heavily or exclusively rely upon mobile broadband would be fully protected.  Second, I would have prohibited pay for priority arrangements altogether.  Third, an open Internet should be available to all end users—residential, enterprise, for-profit or not.  This Order goes a long way toward protecting an open Internet for residents, small businesses, schools, libraries, patrons of coffee shops, bookstores and the like, but I worry that those who may not fit into these categories will have to negotiate for access to the open Internet, and they may be denied such access.”

>>Commissioner Meredith Attwell Baker (dissenting): “The evidentiary record in our proceeding has reaffirmed that government action is not necessary to preserve it. Yet the majority acts, and acts decisively, to adopt Net Neutrality rules, imposing the heavy hand of government into how broadband networks will be managed and operated…In the final analysis, the Commission intervenes to regulate the Internet because it wants to, not because it needs to. 

“I keep returning to what should be a threshold question: why do we intervene in the one sector of the economy that is working so well to create high-paying jobs, untold consumer choice, and entrepreneurial opportunity? …The facts, the law, and the policy cannot support this decision. So again, why do we act? The only plausible reason left is to deliver on one of the President’s campaign promises.  I must respectfully dissent. 

“I have seven principal objections to this decision. First, the factual record does not support government intervention. Second, the majority’s claim that consumers will benefit from this government overreach is unsupported and deeply flawed. Third, the majority’s focus on preserving network operators’ current conditions will distort tomorrow’s Internet. Fourth, the majority puts the Commission in the unworkable role of Internet referee. Fifth, the majority fails to marshal a sustainable legal foundation.  Sixth, the majority’s decision to act a legislator, not regulator, is a mistake that may undermine our agency’s mission. And, lastly, opportunity cost. By that, I mean we have squandered months on this effort, diverting resources and political capital away from real problems that lie within our core competencies, like universal service and spectrum reform.” 

More Reaction

>>Matthew M. Polka, president and CEO, American Cable Association: “ACA appreciates that under Chairman Genachowski’s leadership, the FCC reconsidered the Title II option and has advanced a template that appears to give providers appropriate pricing and network management flexibility under a light touch framework that attempts to balance the interests of consumers, innovators and access providers. At some point soon, ACA encourages the FCC to close the Title II docket to reassure stakeholders that such a heavy-handed approach is no longer under serious consideration.”?

>>Time Warner Cable: “The net neutrality rules adopted today by the FCC appear to reflect a workable balance between protecting consumers’ interests and preserving incentives for investment and innovation by broadband Internet service providers. While we continue to believe that Internet regulation is unnecessary and unwarranted, we are pleased that the FCC has rejected proposals to impose even more burdensome and heavy-handed common carrier regulations under Title II of the Communications Act…Now that the FCC has settled on a regulatory framework for broadband Internet access services, we can pursue that mission with a somewhat greater measure of certainty and stability going forward.”

>>Communications Workers of America: “The FCC’s action resolves the issue in a way that protects an Open Internet yet provides for incentives for investment, economic development and the creation of quality jobs and sustainable communities. The plan adopted by the Commission codifies the FCC’s Open Internet principles, which call for no discrimination, full transparency, no blocking and free speech, and cover wireless technology while acknowledging technological differences. Now that the Commission has taken this important step, we can move forward on bringing broadband networks up to the global standard.”

>>John Ryan, assistant chief legal officer, Level 3 Communications Inc.: “The objective of the Commission’s order is clear — a call for no impediments to an open Internet. The FCC’s rule against blocking content, combined with its rule calling for no unreasonable discrimination, make clear its intent that broadband providers cannot serve as gatekeepers to companies providing competing content, services or applications to those providers’ customers…We are confident that, over time, the Commission can implement these rules in a way that preserves Internet openness and protects competition, without unreasonably regulating the Internet.”

>>The Japanese American Citizens League: “As the oldest and largest Asian American civil rights organization in the United States, the JACL has carefully followed and actively participated in net neutrality discussions for more than a year…From healthcare to civic engagement to distance learning, broadband technology changes the lives of those who have access to it.  However, as the FCC has recognized, there are many communities that have been left out of this technological evolution, and in this time of economic hardship, it is even more important to equip these communities with the tools they need to overcome their circumstances.  

“Thankfully, based on our initial understanding of the Order, it appears that the Commission has heeded our caution and approved a policy that will protect the well-being of consumers online, as well as facilitate adoption initiatives and a digital future that incorporates all Americans.”

>>Richard Bennett, senior research fellow, Information and Technology Foundation: “The clarity the order provides could not come at a more opportune time… Consumers will have access to the information they need to make informed choices, the Internet will be free of harmful discrimination and open to beneficial differentiation, and neither private investment nor the National Broadband Plan will be held hostage any longer to regulatory uncertainty. ??

“We’re disappointed that some of the self-styled public interest and free market organizations choose to remain outside the big tent that Chairman Genachowski and his colleagues have worked so tirelessly to build. ITIF takes a back seat to no one in our support for consumer rights and well-functioning markets, and we would certainly not support this plan if we didn’t believe it would protect innovation and our fellow citizens. We’re also concerned about last-minute changes that cast doubt on the ability of network operators to offer premium transit services for sale to those who need them in a non-discriminatory fashion, but trust this problem can be resolved as a matter of process.” ??

>>Alliance for Digital Equality: “As the leading organization promoting digital empowerment in underserved and un-served communities, ADE recognizes the importance of expanding broadband technology and ensuring an open Internet. The FCC’s vote marks a fresh start for the New Year and we are hopeful that this policy will help spur growth and innovation in our struggling economy.”

>>Brent Wilkes, executive director, The League of United Latin American Citizens: “The passage of the Open Internet Order will hopefully lead to new jobs and opportunities through high-speed Internet for people in all communities – especially for Latinos who have been on the wrong side of the digital divide for far too long…This settlement will ultimately benefit consumers as it will enable Latino and other underserved communities to connect to broadband – both mobile and wireline – and realize the myriad benefits that broadband allows, regardless of ethnicity or income level.”

—Debra Baker

The Daily

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