[Infowarrior] - FCC looks at ways to assert authority over Web access

[Richard Forno]

FCC looks at ways to assert authority over Web access
By Cecilia Kang
Washington Post Staff Writer
Friday, January 15, 2010; A22

http://www.washingtonpost.com/wp-dyn/content/article/2010/01/14/AR2010011404717_pf.html
The Federal Communications Commission is considering aggressive moves  
to stake out its authority to oversee consumer access to the Internet,  
as a recent court hearing and industry opposition have cast doubt on  
its power over Web service providers.

The FCC, which regulates public access to telephone and television  
services, has been working to claim the same role for the Internet.  
The stakes are high, as the Obama administration pushes an agenda of  
open broadband access for all and big corporations work to protect  
their enormous investments in a new and powerful medium.

"This is a pivotal moment," said Ben Scott, director of policy at the  
public interest group Free Press. The government wants to treat  
broadband Internet as a national infrastructure, he said, like phone  
lines or the broadcast spectrum. But federal regulators are grappling  
with older policies that do not clearly protect consumers' access to  
the Web, their privacy or prices of service.

The issue may have reached a turning point last week when a federal  
appeals court questioned the limits of the FCC's authority in a 2008  
case involving Comcast. The agency had ordered the Internet and cable  
giant to stop blocking subscribers' access to the online file-sharing  
service BitTorrent. But in an oral hearing last Friday, three judges  
grilled an FCC lawyer over whether the agency had acted outside the  
scope of its authority.

The appeals court is still hearing the case, but analysts predict that  
the FCC will lose and that the ruling could throw all of its efforts  
to oversee Internet access into question. A loss could undermine the  
legality of FCC Chairman Julius Genachowski's push for policies that  
would prohibit service providers from restricting customers' access to  
legal Web content -- the concept known as net neutrality -- and throw  
into doubt the agency's ability to oversee pricing and competition  
among Internet service providers.

The agency said it will continue to argue that it had the authority to  
rule against Comcast, but it is making plans to deal with a loss.

"If the court removes the legal basis for the current approach to  
broadband, the commission may be compelled to undertake a major  
reassessment of its policy framework . . . or Congress will have to  
act," said Colin Crowell, senior adviser to Genachowski. "Any policies  
the commission pursues for the broadband marketplace will be rooted in  
the pro-consumer, pro-competitive structure of the 1996  
Telecommunications Act, regardless of how the court ultimately decides."

Specifically, that could mean the agency will reverse policies from  
the past decade that put cable and DSL Internet services in a special  
category over which the agency has only "ancillary jurisdiction."  
Those policies were intended to deregulate Internet services in order  
to promote competition and innovation in the young industry as it  
developed. Consumer groups argue that they instead reduced competition  
and drove prices higher.

Analysts said the FCC may look to put broadband services back into a  
category alongside phone services that is clearly under the authority  
of the government.

At issue, some FCC officials say, is the future of how Americans will  
communicate and receive information. One in five U.S. homes has  
swapped landline telephone service for wireless. Most of those phones  
have Web browsers that are fast enough to watch videos and navigate  
traffic in real time. Consumers are also adopting ultra-high-speed  
Internet services over fiber and cable for 3-D games and  
videoconferencing.

"While I am still hopeful that we'll win the case, I am absolutely  
certain that consumers expect protection against gatekeeper control,"  
said Commissioner Michael Copps, a Democrat. "That's why we need to  
move forward with whatever tools we have at our disposal to ensure an  
open Internet."

A move to reclassify broadband services would almost certainly be  
opposed. The telephone category is steeped in decades-long rules that  
are meant to prohibit blocking of services, protect consumer prices  
and spur competition. Such rules would be a stark change for Internet  
service providers that invest billions of dollars each year in  
networks but also receive high rates of consumer complaints over  
prices and services.

"To the extent that we need more regulation, we think less is more,"  
said Kyle McSlarrow, head of the National Cable and Telecommunications  
Association, a trade group. "The more granular and more regulatory we  
become with practical and legal issues, we can go too far."

The agency also could ask Congress to grant it explicit authority over  
Internet service providers. But that approach would also face  
significant barriers, analysts said.

"The odds are against it," said Paul Gallant, an analyst at Concept  
Capital, a research firm. "Net neutrality is the most controversial  
issue in the telecom media world, and even with a Democratic majority,  
it's not easy to pass."


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