The FCC survived a critical challenge to its regulatory authority under Title III of the Communications Act, with the U.S. Court of Appeals for the D.C. Circuit upholding the commission’s April 7, 2011, data roaming order over a challenge from Verizon Wireless. The case was widely viewed as a key test of FCC jurisdiction. Another big test awaits, with the D.C. Circuit slated to consider arguments on the commission’s 2010 net neutrality rules next year.
The U.S. could find itself in a position where it has to offer compromises this week as the World Conference on International Telecommunications gets started in Dubai, observers say. They noted that Ambassador Terry Kramer has indicated the U.S. will stand firm on Internet governance at WCIT, though he must answer to the State Department and the Obama administration. If the U.S. decides it must move toward compromise, the decision won’t be Kramer’s alone.
The U.S. could find itself in a position where it has to offer compromises this week as the World Conference on International Telecommunications gets started in Dubai, observers say. They noted that Ambassador Terry Kramer has indicated the U.S. will stand firm on Internet governance at WCIT, though he must answer to the State Department and the Obama administration. If the U.S. decides it must move toward compromise, the decision won’t be Kramer’s alone.
Verizon’s First Amendment Arguments ‘Startling,’ Amici Say in Briefs Supporting Net Neutrality Rules
Law professors, engineers, computer scientists, Internet company reps, state regulators, public interest groups and former FCC commissioners told the U.S. Court of Appeals for the D.C. Circuit Thursday that Verizon was way off the mark when it claimed First Amendment rights trumped the commission’s December 2010 net neutrality order, which mandated nondiscriminatory treatment of Internet traffic across ISPs’ networks. The groups also argued that Section 706 of the Telecom Act gave the commission the authority needed to pass its Open Internet order. “As leading Internet content, applications and network companies, legal scholars and investors, and former FCC commissioners have confirmed, the Commission’s order preserves the Internet as the most powerful platform in human history for innovation, investment and free expression,” a commission spokesman said.
Lacking the “benefit of public comment” on broadcast ownership data before moving to adopt FCC media ownership rules was opposed by public-interest lawyer Andrew Schwartzman. His filing posted Thursday to docket 09-182 reported on a lobbying meeting last week with an aide to Commissioner Mignon Clyburn, before the quadrennial media ownership order circulated and the Media Bureau released such data, both occurring Wednesday (CD Nov 15 p1). “The failure to seek comment under similar circumstances resulted in a reversal of the Commission’s earlier ownership decision,” Schwartzman wrote (http://xrl.us/bnzum4) of the 3rd U.S. Circuit Court of Appeals’ remand last year of the last quadrennial ownership order. The conversation was made only on Schwartzman’s behalf, though Free Press, which he represents on media ownership, shares his view, he told us.
Verizon’s First Amendment Arguments ‘Startling,’ Amici Say in Briefs Supporting Net Neutrality Rules
Law professors, engineers, computer scientists, Internet company executives, state regulators, public interest groups and former FCC members told the U.S. Court of Appeals for the D.C. Circuit Thursday that Verizon was way off the mark when it claimed First Amendment rights trumped the commission’s December 2010 net neutrality order. The order mandated nondiscriminatory treatment of Internet traffic across ISPs’ networks. The groups argued that Section 706 of the Telecom Act gave the commission the authority needed to pass its Open Internet order. “As leading Internet content, applications and network companies, legal scholars and investors, and former FCC commissioners have confirmed, the Commission’s order preserves the Internet as the most powerful platform in human history for innovation, investment and free expression,” a commission spokesman said by email.
The rest of the world is watching to see whether the U.S. will regulate a portion of the Internet, and FCC Commissioner Robert McDowell finds the idea “a little unsettling,” he said at a Silicon Flatirons conference on spectrum policy Tuesday. The danger, he said, is that a bad idea adopted by U.S. policymakers could get “amplified abroad” as teams at the ITU read everything the FCC writes. The open Title II docket has sent a “confusing message,” McDowell said, with the topic coming up in every conversation he has when traveling abroad and discussing World Conference on International Telecommunications issues. Foreign officials ask him: If the U.S. is seriously considering classifying a portion of the Internet as a common carrier, what’s wrong with the rest of the world considering it as well? And why don’t we then regulate more of the Internet? “Whether that was the original animal, that’s how it’s being sold” overseas, McDowell said. McDowell has long been critical of reclassifying broadband as a Title II service, advocating a “light touch” that encourages business investment and innovation. Commissioner Ajit Pai railed last month against “anachronistic laws” in the Telecom Act that don’t make sense in an IP-based marketplace, and pushed for closure of the Title II docket. McDowell is “absolutely right,” said Phoenix Center President Lawrence Spiwak. The long-standing policy of the U.S. is to not impose onerous regulations on the Internet, he said. While the docket is open, it sends a message both domestically and internationally that the U.S. is “not fully committed” to that policy, he said. “What is the purpose of having this docket if not to use this docket?” Spiwak asked. It’s a “sword of Damocles hanging over the industry’s head.” “This notion about sending a message to the rest of the world is utter nonsense,” said Harold Feld, senior vice president of Public Knowledge. “To suggest that delegates to the ITU cannot tell the difference between what is suitable for domestic policy and what is suitable for ITU jurisdiction does not appear to be supported by the facts on the ground.” Even if this were the case, it’s unlikely anyone making that argument would be swayed by an FCC decision to close the Title II inquiry at this point, he said. “If the FCC announced tomorrow it was closing the Title II docket, wouldn’t these same supporters of ITU jurisdiction argue that this was the consequence of political interference solely designed to circumvent ITU jurisdiction?” Communications lawyer Andrew Schwartzman disputed McDowell’s premise that Title II regulation means regulation of the Internet. That premise “is wrong,” he said. “What would be truly unsettling is if the United States were to drop its commitment to an open Internet.” Asked for key takeaways from his experience as a commissioner, McDowell said the wireless sector’s success has shown him that “light touch” regulation works. The commission should also avoid enacting policies that may be obsolete by the time they get out into the marketplace, he said. The commission should avoid making it harder for secondary markets to work, and respect antitrust law and concentrations of power that result in user harm, while also allowing spectrum that’s already in the market “to flow to its highest and best use,” he said.
The rest of the world is watching to see whether the U.S. will regulate a portion of the Internet, and FCC Commissioner Robert McDowell finds the idea “a little unsettling,” he said at a Silicon Flatirons conference on spectrum policy Tuesday. The danger, he said, is that a bad idea adopted by U.S. policymakers could get “amplified abroad” as teams at the ITU read everything the FCC writes. McDowell also discussed ideas for getting more spectrum into the hands of consumers, and endorsed the idea of paying federal users to get off their spectrum.
Change is on the way at the FCC, with Chairman Julius Genachowski widely expected to step down some time next year after nearly four years in the job. Change won’t be nearly as sweeping as what would have followed a Mitt Romney victory and the likely reversal of several key Obama administration policy calls, starting with 2010 net neutrality rules, government and industry officials told us Wednesday.
Change is on the way at the FCC, with Chairman Julius Genachowski widely expected to step down some time next year after nearly four years in the job. Change won’t be nearly as sweeping as what would have followed a Mitt Romney victory and the likely reversal of several key Obama administration policy calls, starting with 2010 net neutrality rules, government and industry officials told us Wednesday.