FCC of Two Minds on Net Neutrality Rules?

Thanks again to Scott Rose of ScottWorld.com for keeping The Konformist updated on the Net Neutrality battle.

http://www.wired.com/epicenter/2009/09/fcc-going-schizo-on-net-neutrality-rules/

FCC of Two Minds on Net Neutrality Rules?
By Ryan Singel
September 22, 2009

On the same day the FCC announced it would start formal proceedings to turn anti-discrimination guidelines into the law ruling the internet, the commission told a federal court judge that its current, ad-hoc rules are good enough to order ISPs not to unfairly mess with internet traffic.

At issue in court are the so-called Four Freedoms, a set of principles dating to 2005 that guarantee that cable and DSL users have the right to use the devices, services and programs over their connections. Now, those rules are under attack by Comcast, even as the FCC announced Monday that it would expand the fairness obligations on ISPs and apply them to wireless services — but would do so through a protracted, official rule-making process.

But if the FCC already has the authority to stop ISPs from blocking online services that compete with their other businesses, it’s unclear why the commission will engage in yet another complex process, even as its engulfed in devising the nation’s first broadband plan — which is due to Congress in February.

The current court controversy started when the Republican-controlled FCC used the rules in August 2008 to order Comcast to stop blocking peer-to-peer applications.

Comcast took the agency to court in September, arguing the FCC had no right to tell it what it could or couldn’t do with internet traffic. Comcast told a federal appeals court that the rules are arbitrary since they never went through the proper rule making process — such as the one proposed by FCC chairman Julius Genachowski on Monday.

But the FCC told the D.C. Circuit Court of Appeals that its authority extends beyond just cumbersome rule-making processes.

“The modest regulatory steps taken here fall comfortably within the FCC’s ancillary authority,” the FCC wrote in its filing. “If allowed, clandestine network-blocking practices such as Comcast’s could undermine the Commission’s regulatory goals for virtually every sector of communications media, from the Internet, to cable and broadcast television, to voice communications.”

But if the FCC already has the authority to enforce net neutrality, why is it embarking on a large and controversial rule-making process that already has Republican lawmakers trying to find ways to stop it?

When asked by Wired.com, FCC spokeswoman Jen Howard said the process was about codifying the principles.

“Chairman Genachowski is proposing additional principles that ensure openness and transparency on the Internet,” Howard told Wired.com “And he is seeking to codify all these principles into rules. These steps will safeguard the future of the free and open Internet.”

The FCC adopted the broadband principles in 2005 as a way to keep authority, even as the commission decided that DSL, like Cable internet before it, was not a ‘telecommunications service.’ That designation freed the services from common carrier obligations that apply to the phone system, such as not discriminating unfairly and allowing other companies to rent their infrastructure at a fair rate.

According to Comcast’s July filing, that change makes removed the FCC’s authority over its cable internet operations.

Comcast drew scrutiny starting in February 2007 when engineers and interest groups discovered that the service was messing with the peer-to-peer service BitTorrent by sending fake signals to users’ computers. When confronted, Comcast dissembled and obfuscated for months, until finally it admitted it was blocking the traffic in the name of preventing network congestion.

Comcast finally switched to a traffic slowing technique that did not single out particular applications, and the FCC’s order, which came a year and a half after the blocking was discovered, simply ordered the company not to do it again and to explain to the FCC what its new technique was. No fine was imposed.

The FCC also says that Comcast’s challenge should be thrown out since it has already admitted in another federal court that the FCC has jurisdiction. Comcast convinced a federal court judge in Northern California to put on hold a class-action lawsuit brought by its customers over the issue, arguing that the FCC, not the courts, had authority. That case remains on hold.

The case will not likely have a hearing until 2010, when the FCC might well have enshrined “net neutrality” rules that make the case moot.