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[ NNSquad ] Re: Dueling broadband policies
We need to be careful about confusing statements of goals with specifications and with politics. When I read “(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;” it’s hard to take the rest seriously. These principles don’t seem to be specific rules. But then we’re using terms like “broadband” which are very vague.
In the short term it’s about containing rage. Reading people’s traffic to decided what to sell them is clearly out of bounds. Peeking inside packets for network management is also questionable but fuzzier – at very least such actions should be transparent.
What takes precedence, alas, is the popular perception of fairness. I’d prefer going back to first principles and the First Amendment which does trump Congress. But it will take a while for people to realize they don’t need people second-guessing their conversations.
As the matter of the Comcast petitions (which was mentioned repeatedly at the Pittsburgh hearing) comes to a head at the FCC, there's a jurisdictional question that I haven't seen asked yet and which may be key to everything.
Suppose that Congress makes a policy statement (and includes it in a law), and then the FCC makes a policy statement. Which one takes precedence? Why, the one drafted by Congress, of course.
Well, it turns out that Congress did make a very specific broadband policy statement when it passed the Telecommunications Act of 1996. It's at 47 USC 230(b), and it says:
It is the policy of the United Statesï¿½
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their childrenï¿½s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
This policy statement by Congress -- which, unlike FCC Chairman Michael Powell's "four freedoms" policy statement, was not explicitly declared to be "nonbinding" -- trumps any contrary policy statement made by the FCC.
How could inside-the-Beltway lobbyists such as Free Press ask that Michael Powell's rough policy ideas -- unvetted by a rulemaking process and directly contradicting the statute -- take precedence over Congress' explicitly binding policy? Do we need to wait for a court to state the (seemingly obvious) answer?
[ Well, shucks. Regardless of the particulars of that
jurisdictional argument itself, the very concept of such
possible jurisdictional disputes could be viewed as validating
those groups who feel that pursuing legislatively mandated
regulatory changes at the Congressional level is a useful
-- Lauren Weinstein
NNSquad Moderator ]