Michael Copps

Copps made the call for an update at the National Cable and Telecommunications Association’s Cable Show in Washington, traditionally snubbed by his predecessor, who was often criticized for favoring phone companies.

The proposed Fifth Principle would warn that if Internet service providers “block, hobble, molest, unfairly prioritize, too deeply packet inspect, or otherwise selectively interfere with protocols or devices on the Internet,” the FCC would take action against them.

Jonathan Adelstein

Copps suggested the addition of such a principle would send a message that the FCC was serious about enforcing non-discrimination rules. During the previous administration, Copps and soon to be former commissioner Jonathan Adelstein were frequently outnumbered by three Republican counterparts on Network Neutrality issues.

Copps’ proposal may be a comfort to Net Neutrality supporters as it suggests a new regulatory approach to network management. However, the current four principles were established as conditions for approval of AT&T’s merger with Bell South and were quickly discounted by Martin as having no teeth. Martin did an about face on that when it came to Comcast’s interfering with peer-to-peer traffic at all times of day.

The FCC barred and penalized Comcast from doing so, an action still being challenged in court. Comcast argues, as Martin had originally in regard to phone companies, that the FCC lacks the authority necessary to enforce its order without express power granted to it by Congress.

Copps obviously is confident the FCC does retain such authority, but the end result is that Copps strangely echoes the arguments launched forth by the telecom, cable, and entertainment industries: no legislation is necessary. The Comcast case will test whether that theory holds up.

It’s likely both sides (industry and regulatory) would like to keep these matters loosely defined in the interest of flexibility legislation would prevent—the FCC could decide if, when, and how to act, and industries are left with enough legal ambiguity to allow some wiggle room.

What that means for Internet consumers, small and medium-sized businesses and startups, potential competition is that enshrined protection from behemoth interests and abuse will never be guaranteed, but left to the discretion and whims of whichever FCC is currently in power.

It’s interesting that Copps, after all that impressive grandstanding when outnumbered by political rivals under Martin, would suddenly embrace more potentially toothless guidelines. What will be more interesting is where Copps goes after his stint with the FCC. For many former high-ranking government agents, the streets to the lobby of industries they used to regulate are paved with gold.

The four principles already included in the Internet Policy Statement state consumers are entitled to access the lawful internet content of their choice; consumers are entitled to run applications and use services of their choice; consumers are entitled to connect their choice of legal devices that do not harm the network; and consumers are entitled to competition among network providers, application and service providers, and content providers.

Even with these supposedly enforceable guidelines in place, AT&T has not hesitated to change its terms of service regarding mobile broadband, which bars competing VoIP and video services. If Copps and others believe the FCC’s current authority is sufficient to ensure a neutral network, both AT&T and Comcast’s actions suggest they believe otherwise.  
 

So the Pearl Jam incident is what you might call a big disaster for AT&T, Verizon, and Comcast, who’ve placed their bets on a non-neutral world, and have spent vast sums lobbying the government to prevent oversight.

In an interview with Net Neutrality campaigner Matt Stoller, Copps called the Internet "perhaps the most dynamic and liberating" technology in human history.

"So when something like the episode occurs with Pearl Jam that you’re referencing that ought to concern all of us," he said.

"It ought to concern us whether we’re liberal or conservative, Republican or Democrat, young or old, because if you can do it for one group you can do it to any group and say well it’s not intentional and things like that."

AT&T came forward last week and admitted to the inadvertent censorship of "a handful" of other bands that includes Rage Against the Machine and the Flaming Lips. The company shifted blame for the incidents, all of which involved political speech and not profanity, to a third party monitoring service.

Things as they are now, with no Net Neutrality assurances whatsoever, Copps reiterates that there is no mechanism in place to prevent incidents like this in the future. Drawing on a more historically accurate, common sense approach, rather than an overall philosophy that is more pleasing to the ear than it is true, Copps warns that where there incentive and ability to do something, it most likely will be done.

"We are seriously in danger of going down another road and it seems to me if you look back over history, if you have the power, the technology to do something, and you have a commercial or business incentive to do it, you can be damn sure someone’s going to try it somewhere down the line."