As Democrats regained control of both houses of Congress after the 2006 mid-term elections, they enacted a strategy of shifting the authority for implementing and regulating so-called net neutrality to the Federal Communications Commission, where Republican opposition was less likely to forestall it. Now that the FCC itself is under Democratic control, and its new chairman Julius Genachowski comes into the job already having been recognized as the nation’s leading net neutrality advocate, Republicans in Congress have little else to do but voice their opposition from the sidelines.
That’s exactly what they’re doing today, in a concerted effort whose timing is curiously in sync with the publication of a position paper on net neutrality from leading service provider Verizon.
In a letter today to Chairman Genachowski signed by leading House Republicans, including ranking Subcommittee on the Internet member Rep. Cliff Stearns (R – Fla.), Congress’ leading opponents of net neutrality regulation made their arguments clearer than at any time before. Rep. Stearns’ office shared a copy of this letter with Betanews this afternoon.
Speaking very directly to the problem, Stearns and his co-authors spoke of the FCC’s obligation to provide regulation only when the market fails to regulate itself. “You should provide a thorough market analysis prior to proposing any regulation,” the congresspersons wrote. “The FCC bears the responsibility to prove a market failure, especially since its 2002, 2005, 2006, and 2007 decisions on cable modem service, digital subscriber line service, broadband over power line service, and wireless broadband service were predicated on the notion that the broadband market nationwide is competitive and that regulation is unwarranted. In a sector this innovative and this vital to our economy, it would be irresponsible for the Commission to do anything less, especially since this is one of the few sectors that is still investing billions of dollars in the current financial climate.”
Addressing some issues that Genachowski has already spoken to — or at least, has promised to speak to — the House members advised the FCC Chairman to define the meaning of “net” with respect to the extent of his agency’s regulatory power. Does it cover cable, wireline, wireless, satellite, broadband-over-power-line, or some combination of the five, they asked. And what exactly is “broadband” anyway — will the FCC ever decide how fast is “fast?”
Only then should the FCC determine whether any one entity in the defined market, once it has defined it, has obtained “market power” — essentially the ability to set prices and control the flow of communication at will. Assuming the Commission can obtain such evidence, it should then hold a formal inquiry into the actions of the organization with such power, and address that company specifically, the congresspersons advised.
In a policy statement posted to the company’s blog last Wednesday and updated today, Verizon Assistant Vice President Link Hoewing suggested that if the FCC were to cast its “net” as wide as Rep. Stearns and his colleagues suggested, it would discover that all of the fields they mention are in fact in competition with one another, creating their own system of checks and balances that renders government regulation unnecessary.
“The dramatic innovation and investment in broadband, coupled with innovation in devices and applications, also means more choice than ever for consumers ??” not just in terms of networks but in all realms of the Internet ecosystem. Cable, wireless, satellite, traditional wireline companies, and others compete against each other for consumers’ voice, data and video communication dollars. In addition to facilities-based providers of connections, device makers and application developers also compete for customer relationships,” Hoewing wrote. “The advent of multiple broadband networks means network operators are no longer in the preeminent position with customers that they once were when they operated single-purpose networks for things like telephone and cable TV. So the field gets complex pretty quickly.”
In their letter to the FCC, the House Republicans — joined by influential Energy and Commerce Committee member Rep. Mary Bono Mack (R – Calif.) — went so far as to equate the concept of “net neutrality” with a single-flavor approach to broadband service that would border on socialism.
Stating that the cost of complying with these regulations could cost US businesses and taxpayers as much as 0 billion combined, they wrote, “Network neutrality rules would make it harder, not easier, for such investment to occur. A one-size-fits-all Internet where every entity must provide the exact same levels of service and that costs consumers more on average for slower speeds and less innovation will not be very competitive. Nor will it serve consumers will or draw much investment for further improvements. Even if there is a problem, it does no good to adopt a regulation if it performs more poorly than engineers and markets in addressing that problem. For instance, we caution against either limiting the ability of network providers to offer managed services or restricting the use of those services only to certain purposes.”
The congresspersons’ concerns appear in sync with those of the two Republicans on the FCC, Commissioners Robert McDowell and Meredith Atwell Baker, who voiced their own opinions about the extent of the Chairman’s reach following his net neutrality speech last September 21.
“We are concerned that both factual and legal conclusions may have been drawn before the process has begun,” the Commissioners wrote at the time. “Nonetheless, we look forward to reviewing any and all compelling evidence that may be developed in the record that illustrates the palpable harms that many allege. We do not believe that the Commission should adopt regulations based merely on anecdotes, or in an effort to alleviate the political pressures of the day, if the facts do not clearly demonstrate that a problem needs to be remedied.”
When the Republicans had control of Congress and the Executive Branch, legislation they had proposed to enable service providers the ability to manage service as they pleased failed to become law, due in part to a lack of cooperation among party members. Now that control has shifted in both branches of government, it appears some clarity — for what it’s worth — may at last have been attained.