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 hearing Tuesday. He told Democrats who support anti-discrimination legislation that he’s confident “Congress has given us the authority.” Martin said the Supreme Court’s Brand X decision clarified the commission’s authority to regulate broadband Internet access.
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But several committee Democrats said legislation is needed to bolster FCC power to enforce its Internet principles. Republicans cautioned against it. “Why should Congress not act?” asked Sen. Byron Dorgan, D-N.D., whose bill (S-2917) would prohibit 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 the House Telecom Subcommittee’s chairman, Ed Markey, D-Mass., have divided lawmakers active on telecom matters largely on party lines.
“I know 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 not the time to enact net neutrality legislation. Chairman Daniel Inouye, D- Hawaii, took the middle ground, 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.”
Supporters of legislation asked Martin why he didn’t think the commission 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,” and then have Congress take action, Kerry said. “There is a certainty in the marketplace that comes from” clear congressional intent, he said.
Martin said the commission’s principles are “fundamentally” similar to proposed legislation. But he added, “I don’t disagree that making sure the commission has the authority is a good idea.” The FCC principles, adopted under Chairman Michael Powell, are a statement of policy. Martin has offered details in recent months about how he thinks they should be interpreted.
Concern about the FCC’s authority has risen with Comcast’s contention that the commission lacks power to act against a complaint that the company was holding up 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, expressing confidence that the Internet principles will provide an adequate legal anchor for FCC action.
Martin said Comcast “appears” to have used a “blunt means to reduce peer-to-peer traffic by blocking certain traffic completely,” in his testimony. Advanced equipment could be more “finely tuned to slow traffic to certain speeds based on various levels of congestion.” Though the commission is still investigating the Comcast complaint, Martin said, engineers and technical experts raised questions about the provider’s management techniques in testimony during recent commission forums (CD April 18 p1).
Comcast “does not, has not, and will not block any Web sites or online applications, including peer-to-peer services,” a spokeswoman said. “We acknowledge that we manage peer-to-peer traffic in a limited manner to minimize traffic congestion.” The company believes 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 congressional action that is too restrictive on network management could “bite us severely.” But he told Dorgan he would be willing to co-sponsor a bill with Dorgan that “codifies” the FCC Internet principles. Dorgan said a bill like that would “fall short of what we need to do.”
The network management controversy illustrate a larger problem, several members said: The limitations of broadband service availability. “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.
In his prepared testimony, Martin said the commission needs to consider whether network practices are intended to distinguish between legal and illegal activity, and if the provider has adequately disclosed its network management practices. “Consumers must be fully informed about the exact nature of the service they are purchasing and any potential limitations associated with that service,” Martin said.
A service sold as “unlimited” would need to include an explanation that consumers could be cut off if they use too much bandwidth, if that is the provider’s policy, he said. The commission also needs to decide whether providers are “arbitrarily” blocking or degrading a particular application, he said. Those practices would be viewed with “heightened scrutiny, and the network operator would bear the burden of demonstrating that its policy “furthered an important interest,” Martin said.