Early Reply Comments Disagree Sharply on Proposed Net Neutrality Rules

Even though the FCC delayed until April 26 the deadline for filing reply comments on its net neutrality rules, dozens of commenters weighed in last week. The original comment round was one of the most active ever, with the FCC cataloging more than 100,000 comments (CD Jan 19 p1). The early replies were filed mostly by smaller players on both sides of the question of whether the FCC should codify its current rules and expand the rules to cover wireless. The FCC saw similar divisions among grassroots groups in its first comment round in January.

The Mid-Atlantic Community Papers Association said its review of first round comments did not lessen its belief that enhanced net neutrality rules are needed. It said in its review it “looked for unambiguous language expressing structural guarantees that paying our bills for service, combined with our readers paying their bills for service, shall mean no arbitrary and capricious treatment in the transport of our mutual data from end to end. We found, instead, volumes of tortured and conflicting proscriptions that distill into a bucket of oppositional mud in search of a wall to test adhesive properties.” It said the court decision last week in favor of Comcast “invalidated the prior Commission’s approach. While it may also provide a sticky surface for additional claims against the FCC’s authority, the catalogued transgressions first denied, then admitted and now cleared by the Federal Judiciary, expose the absurdity of the ’solution in search of a problem’ and ‘would never engage in such practices’ arguments."

The National Association of Latino Arts and Culture said Latinos lag in broadband adoption and recent reports suggest that only 37 percent of have broadband service at home. “Yet it isn’t enough to simply provide service to Latino communities,” the association said. “We must have some basic assurances that the network itself remains an open platform for expression. It would be devastating to our arts community in particular if we could no longer compete on an equal technological playing field with better capitalized enterprises."

The National Lawyers Guild: Committee on Democratic Communications, urged the FCC to focus on last-mile connections as it finalizes net neutrality rules. “The Internet market is a duopoly at the last mile,” the committee said. “As a result, ISPs have disproportional power in controlling users’ right to connect. Network neutrality regulations are needed to separate ISPs as wholesale broadband Internet providers from ISPs as last mile Internet providers, to increase competition along the last mile."

Opponents of new net neutrality rules included some groups that traditionally would support initiatives supported by Democrats. Implement the National Broadband Plan, but go slow on net neutrality rules, said Jesse Jackson of the Rainbow PUSH Coalition. “We want to make sure that the Commission’s proposed rules will not have the unintended consequences of making broadband unaffordable to the countless disadvantaged Americans we serve,” Jackson said. “We continue to call on the Commission to conduct a facts-driven analysis of the possible impact that its planned regulations may have on deployment and adoption rates.”

The FCC is on the right track in the National Broadband Plan, but broadband expansion could be undermined by aggressive net neutrality rules, said Beasley Denson, leader of the Mississippi Band of Choctaw Indians. “I urge the commission be mindful that if regulations are crafted in the wrong way they could have a chilling effect on new investment that would fall hardest on rural areas including Indian communities like ours.”

"Net neutrality regulations could prevent network operators from making significant investments to the nation’s broadband infrastructure if such regulations prevent them from managing their networks or recovering the costs of the necessary expansion and upgrades,” said the Los Angeles Urban League. “Moreover, regulation could potentially have the unintended consequence of raising the price consumers pay for these services."

The Washington State Grange urged the FCC to concentrate its efforts on implementing the National Broadband Plan and to “speed the development of broadband service in rural areas, instead of implementing unnecessary government regulations and controls on the Internet,” the group said. “Any regulations that result in a pull back in investment and less access for minority communities will put these recent gains al risk. Private investment is crucial to address the issues of equal access and adoption, and should be at the forefront when you consider any changes,” said the California State NAACP. MANA, a group representing Mexican women, said: “Until the Commission can provide thoughtful analysis and fact-based research proving net neutrality regulations will not adversely harm or deter broadband deployment and adoption in minority communities, we cannot support the Commission’s efforts in the Open Internet proceeding.”

Meanwhile, Mitchell Lazarus, attorney at Fletcher Heald, said in a blog posting the Comcast decision could put an end to the net neutrality debate. “Network neutrality advocates are in despair,” he wrote. “Network neutrality -- the principle that Internet providers should treat content even-handedly -- seems to be dead, waiting only for someone to close its eyes and straighten its tie.” Lazarus said some advocate “the nuclear option” of reclassifying broadband under Title II following the decision. There’s a middle road, he suggested.

"Suppose the FCC were to revisit that 2002 cable decision, the one holding the telecommunications and non-telecommunications aspects of Internet service to be inseparable,” Lazarus wrote. “Could the FCC now change its mind, and separate out the transport-for-pay component as a telecommunications service? Then, instead of applying the full weight of common carrier rules, it could impose just one: a requirement like that in Computer III, requiring the operator to allow competing ISP on the cable. That would bring back competition among ISPs, and create a major disincentive to tampering with content."

Meanwhile, a group of economists filed a paper at the FCC last week arguing that enhanced net neutrality rules can’t be justified based on economic arguments. “In our shared opinion, the economic evidence does not support the proposed regulations; to the contrary, it strongly suggests that the regulations, if adopted, would reduce consumer welfare in both the short and long run,” they wrote http://xrl.us/bhf8g5. Two of the economists, Jeffrey Eisenach of George Mason University Law School and Robert Litan of the Brookings Institution, are to discuss the findings further during a media briefing Monday.