New America Foundation hosted a discussion on “FCC: Toothless Regulator or Cop on the Beat?” following the D.C. Circuit Court of Appeals’ ruling this month that the Federal Communications Commission lacks the authority to prevent cable giant Comcast from blocking certain peer-to-peer applications. Michael Calabrese, Director of the Wireless Future Program at New America Foundation opened the discussion laying out questions that badger most people who are a part of the broadband ecosystem today- Does the FCC have the authority to enforce its Network Neutrality principles? Or to refashion the Universal Service Fund to promote broadband adoption? Or to protect consumer privacy and promote competition?
Consumer groups and many companies argue that the FCC should reclassify Internet access as a common carrier telecom service – and regulate it lightly but as needed. Internet Service Providers and free market advocates argue the FCC cannot and should not justify regulation under traditional common carrier principles and authority.
Barbara Esbin, Senior Fellow and Director, Center for Communications & Competition, Progress & Freedom Foundation, suggested that there maybe no empirical way to reclassify Internet access as a stand-alone service and considering that the FCC has never regulated the market, only Congress could provide legal compulsion for competition and consumers. She also added that the FCC should instead aid Congress with information about markets, policies and failures amongst other issues to help make a decision.
Linda Kinney, Vice President, Law & Regulation, DISH Network, highlighted that while there is no obvious choice for the FCC with regard to reclassification of internet access or continuing as an ancillary authority, and though Congress provides the right forum for resolving these issues, the time taken in Congress to pass regulations is a major concern. She suggested that looking for a “spare tire approach” to get around delays caused in Congress would be an important area to probe into.
Harold Feld, Legal Director, Public Knowledge, firmly echoed that as a matter of formulating better policy, the FCC has the responsibility to open a proceeding in the case of reclassification of internet access as a common carrier service. He drew parallels between the financial services and broadband industries, suggesting that a federal agency should step in to the broadband market before something could actually go wrong.
Hank Hultquist, Vice President-Federal Regulatory Affairs, AT&T, spoke on behalf of the industry, while saying that the D.C. Circuit Court of Appeals’ ruling does not necessarily have a “sky-is-falling approach” on the ancillary authority of the FCC. He implied that by reclassifying internet access as Class II, the FCC would still not have authority since the companies would continue to be classified under Class I. He also said that ISPs have never been treated as common carrier services and nothing has been threatened with the latest Comcast-FCC ruling.
What reverberated throughout the discussion were the conflicting thoughts of two groups – public interest and private sector. People on one side of the argument believe that the ruling has thrown a huge legal roadblock in the path of the FCC’s National Broadband Plan – and President Obama’s promise to preserve a non-discriminatory, open Internet. However, the corporate sector believes that private sector leadership is essential for industry impetus.