Broadband Report Seen as Setting Up 20-30 Rulemakings

The creation of the report shows that “this FCC is particularly comfortable with a legislative-type process,” the “many public notices” indicating how broad and extensive its gathering of information and opinions has been, Brenner said. “You have to wonder, ‘Can they absorb all that information?'” The commissioners won’t vote on the report itself because “the editorial process” needed to allow that “would be impossible,” Brenner said. Sohn credited the commission with producing in the “incredibly short” time of a year what she said will be a 500-page document.

A proposed FCC rule against online discrimination by service providers would ban their selling quality-of-service to content providers and require “best efforts for all,” Brenner said. “It’s a little early to come” to the conclusion that the regulation is needed to deal with market failures, he said. Sohn called quality of service “a mere euphemism” for the desire of incumbent service providers to be allowed “to play favorites.”

Premium service from Akamai or Google isn’t “a last-mile problem, a net neutrality problem,” Sohn said in response to a challenge from Brenner about why those companies’ offerings shouldn’t come under nondiscrimination rules. Kenneth Ferree, a senior fellow at the Progress & Freedom Foundation, said he hasn’t seen any “evidence of a systematic problem” that would support commission action.

The commission has indicated that a service provider’s deal with a company like YouTube to provide content straight to the distributor would raise discrimination problems, said Michael Olsen, Cablevision vice president of legal and regulatory affairs. But “I don’t think that’s where the FCC wants to come out,” he said. “It would be counterproductive for consumers.”

Cable’s proposed TV Everywhere threatens program access by Internet video services, competition and innovation in the pay TV industry and consumer choice, by tying online and mobile access to pay-TV programming to a subscription provider’s cable service, said Parul Desai, vice president of the Media Access Project. She said online companies like Joost have been forced to change their business models because they've been denied TV programming. But Olsen and Brenner said it’s up to programmers to decide which distributors to sell their shows and a pay-TV company can’t be expected to pay as much for programming that’s available online at no charge as for that which isn’t. Olsen pointed to Cablevision as responding to the Internet’s challenge with new technologies and products.

Sohn said she doesn’t like signals from the FCC about copyright protection activities by ISPs that the commission would treat as reasonable network management. “I really fear that the FCC is becoming the Federal Copyright Commission,” meddling in a field where it has no authority, she said. Sohn said she expects the broadband report to point to copyrighted material as a major draw for taking service, but “I think Facebook and Twitter are the drivers of broadband adoption.”

The FCC has problems besides a jurisdiction question, which threatens any Internet rules, in Comcast’s court challenge to the commission action against the company’s blocking BitTorrent traffic, Brenner said. The company was punished before it “exactly knew the rules of the road,” raising notice issues, he said, and the FCC’s decision makes clear that the commission decided the outcome before working up the reasoning.

The Comcast case is “the elephant in the room in Washington,” Sohn said, endangering not only net neutrality but also FCC privacy regulations, a universal-service overhaul, public-safety work and truth-in-billing. “We'll go right back to court” if the District of Columbia Circuit rules against the commission, she said. Public Knowledge has proposed that the FCC declare it has jurisdiction to regulate broadband under its Title II telecom authority in the Communications Act. Opponents act as though this would be “an all-or-nothing thing,” when in fact the FCC could forebear from applying any common-carrier rules, Sohn said.

The broader question is whether there’s “still a role for the FCC at all in this modern media and communications marketplace,” said Ferree, who called himself a libertarian. The commission has been “more of a damper to innovation than any kind of help,” a regulatory agency of this kind is by nature “backward-looking” and “we certainly can’t predict what the world will look like five or 10 years hence,” he said.

The proceeding on the future of the media is especially troubling, said Ferree, who ran the FCC Media Bureau under Chairman Michael Powell. It’s “very dangerous when the government decides it has some role in saving journalism,” he said. The institutions “can’t be in bed together” if journalism is to remain one of the most important checks on government, Ferree said. They “should be adversaries.” Sohn said she, too, is uncomfortable with some FCC power “grabs,” including the future of media proceeding. “I don’t think the government should be in the position of protecting business models.” Officials can use their “bully pulpit” but not subsidies to defend journalism, she said. “If newspapers are dead, they're dead,” Sohn said. She said she wants ’someone ensuring that there’s good investigative journalism,” but not the government.