FCC Can Enforce Internet Principles, Martin Tells Hill
The FCC has authority to enforce its Internet principles, Chairman Kevin Martin told Senate Commerce Committee members at a Tuesday hearing. He’s confident “Congress has given us the authority,” he told Democrats backing anti-discrimination legislation. Martin said the Supreme Court’s Brand X decision clarified agency authority over broadband Internet access.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
But several committee Democrats want a law to bolster FCC power to enforce its Internet principles, a stance Republicans warned against. “Why should Congress not act?” asked Sen. Byron Dorgan, D-N.D., whose bill (S-2917) would bar broadband providers from blocking content or access to services. The bill, co-sponsored by Sen. Olympia Snowe, R- Maine, and a House measure (HR-5353) sponsored by House Telecom Subcommittee chairman Ed Markey, D-Mass., have divided lawmakers active on telecom matters largely on party lines.
“It is a controversial issue, but it certainly should not be,” Dorgan said. Agreeing that the “political division” over the issue is unfortunate, Committee Vice Chairman Ted Stevens, R-Alaska, said it’s the wrong time to push for net neutrality legislation. Chairman Daniel Inouye, D-Hawaii, took a middle path, praising industry and the FCC for progress and citing “dialogue between cable and peer-to-peer services, novel open access requirements on the C-block spectrum, and the swift response of a wireless provider to a text messaging snafu that thwarted political speech.”
Neutrality legislation supporters asked Martin why he doesn’t think the FCC needs help from Congress. “It seems to me we ought to be able to deal with this one concept: Protecting the public interest,” said Sen. John Kerry, D- Mass. Congress should provide “clarity of intent so everyone knows what the rules are.” Better that than wait for an advocacy group to “scream about a situation,” then have Congress act, Kerry said. “There is a certainty in the marketplace that comes from” clear congressional intent, he said.
The commission’s principles are “fundamentally” similar to proposed legislation, Martin said. But, he added, “I don’t disagree that making sure the commission has the authority is a good idea.” The FCC principles, a legacy of Chairman Michael Powell, are a statement of policy. Martin has offered details in recent months about how he thinks they should be interpreted.
Concern over FCC authority has risen with Comcast’s claim that the commission has no standing to act on a complaint that the company was delaying peer-to-peer traffic, Martin said. “Will that lead to litigation?” asked Sen. Gordon Smith, R-Ore. If it does, Martin said, he’s not worried. “Lots of actions we take end up in court,” he said, voicing confidence that the Internet principles offer an adequate legal anchor for FCC action.
Comcast “appears” to have used a “blunt means to reduce peer-to-peer traffic by blocking certain traffic completely,” Martin testified. Advanced gear could be “finely tuned to slow traffic to certain speeds based on various levels of congestion,” he said. The FCC still is investigating the Comcast complaint, Martin said, but engineers and technical experts raised questions about the provider’s management techniques in testimony during recent commission forums (WID April 18 p1).
Comcast “does not, has not, and will not block any Web sites or online applications, including peer-to-peer services,” a company spokeswoman said. “We acknowledge that we manage peer-to-peer traffic in a limited manner to minimize traffic congestion.” The company thinks the practice was a “reasonable choice,” but it plans to move to a “protocol-agnostic network management technique no later than December 31,” as announced last month.
Sen. John Ensign, R-Nev., warned that overly restrictive congressional action on network management could “bite us severely.” But Ensign would be willing to co-sponsor a bill with Dorgan that “codifies” the FCC Internet principles, he told Dorgan. Such a bill would “fall short of what we need to do,” Dorgan replied.
The network management controversy illustrates a larger problem -- limitations on broadband service availability -- several members said. “I for one am very worried that broadband represents our nation’s next infrastructure challenge,” said Sen. John Rockefeller, D-W.Va. “We have yet to treat this with the kind of seriousness that it deserves. The time has come for a different discussion,” on wider deployment,” he said.