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Can The FCC Save Net Neutrality?

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The chief complaints of the telecommunications industry regarding the heated Network Neutrality debate are that regulation limits their ability to compete, build out infrastructure, and innovate; that regulation is unnecessary as principles outlined by the FCC are sufficient to guard it and that telcos like Verizon have already publicly committed to them; and that Net Neutrality is still too poorly defined to write legislation around it.

Can The FCC Save Net Neutrality?
Will The FCC Save The Day For Net Neutrality?

Interestingly, the last two notions are mutually exclusive: How can Net Neutrality principles be simultaneously committed to while being nebulous and ill defined? This logical conundrum works in their favor as well as their opposition. Such is the tricky language and nature of Net Neutrality, and reason as well that people just learning of the issue are having difficulty pulling it down to earth. The devil in the details is causing a gridlock in Congress as talking points become more direct, but more confusing.

Legislators seem to be sticking with their contributors on the whole; telecoms and cable sticking to their best interests; advocates playing the role of voice of the people. Again, the last two notions are mutually exclusive.

In a conference call with free market supportive bloggers (perhaps a misnomer by the call’s host), whom Verizon said had not blogged on the issue at any length and should be informed of “the nuts and bolts of the issue” (who also seemed quite silent during the Q &A), Link Hoewing, Verizon’s VP for Internet Technology Policy and Business Support, denied that legislation was the key to Net Neutrality.

Instead, according to Hoewing, the FCC should continue their oversight of this issue, interpreting complaints on a case-by-case basis, similar to the commission’s handling of the recent Vonage vs. Madison River case, which was resolved without legislation in favor of the VoIP service. Hoewing reiterated Verizon’s commitment to the FCC’s “connectivity principles.”

These principles include:

(1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers.

Particular attention is paid to the fourth principle, which fuels the debate about what exactly guarantees competition and how that guarantee is enforced. Verizon believes these principles are sufficient to protect Net Neutrality in its loosely defined mystique. But legislation binding them to those principles is something Verizon opposes.

“Verizon does not believe that the language of the FCC principles makes good statutory language and could lead to a significant amount of interpretative litigation,” said John S. Czwartacki, former Congressional Republican press secretary during the Clinton administration.

Ben Scott of FreePress.net, a nonprofit organization that specializes in public communications policy, says the FCC’s connectivity principles are “toothless,” as it does not address the issue of preferential tiers of service and discrimination amongst service providers.

“As it was written, [it] was never intended to be legislation. [The connectivity principles] were bullet points for a speech,” said Scott. “If [the telcos] really want [Net Neutrality], why don’t you make them real rules?”

The Huffington Post’s Adam Green agrees. “They’re saying ‘we don’t want to discriminate, but we don’t want to be forced not to discriminate.’”

Net Neutrality advocates fear that if the COPE Act is passed as is, there will be nothing to prevent ISPs from creating Internet choke points where access to content (for various reasons) could be blocked and a toll charged to reach them. Hoewing and Link disagree that could happen, as competition and consumer outrage would prevent it.

People aren’t so sure, though. They know from experience the lack of choice in ISPs, phone service, and cable providers in their area. History is not on the side of the telecoms in the issue as their customers look around to see who, exactly, has been competing with them over the years.

Colin Crowell, who works for Net Neutrality proponent Rep. Ed Markey’s (D – MA) office, told WebProNews that legislation is necessary because the FCC’s fourth connectivity principle was “unenforceable.”

“A chief concern,” said Crowell, “is that they’re going to charge people for things they had before (for free).”

Also, Crowell is unconvinced of Verizon’s public commitment to Network Neutrality principles. When Verizon merged with MCI, he said, the FCC approved the acquisition on condition they stick to Net Neutrality principles. Crowell said Verizon lobbied “vociferously” to ensure those requirements would sunset after 30 months.

“If they were committed, why did they lobby that?”

Czwartacki said the conditions were actually first applied to the SBC/AT&T merger, which closed before Verizon and MCI, and that most merger conditions include sunset clauses to address any “anomalies” arising during transition.

If citizens want to know how lawmakers really feel about the issue, they may be out of luck. The buzz and complication of the issue has apparently driven most of them behind closed doors to discuss it.

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Can The FCC Save Net Neutrality?
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