Recent Developments in Broadband Regulation

From Yochai Benkler - Wealth of Networks
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In Chapter 11, Benkler discusses broadband regulation (p. 399), noting that the FCC decided in 2002 to regulate cable and telephone broadband as an "information service" instead of a "telecommunications service" (p. 400). Relying on Chevron deference, a fractured Supreme Court held in the Brand X case that the FCC's decision was permissible. As Benkler explains, the practical effect is that broadband providers may "'edit' their programming, just like any operator of an information service, like a Web site" (p. 401). This would raise serious First Amendment questions about any attempt to require broadband providers to carry the signals of competitors (p. 401). Benkler points out that this debate has been replaced since 2003 with a debate over "network neutrality", and adds that network neutrality "remains as of this writing a viable path for institutional reform that would balance the basic structural shift of Internet infrastructure from a common-carriage to a privately controlled model" (p. 401).

Benkler is correct that as of his writing, network neutrality remains a viable option. But, depending on one's view of legislation currently pending in Congress, it might not remain one for much longer.

Currently being considered in the House of Representatives is the Communications Opportunity, Promotion and Enhancement Act of 2006. Among other things, this bill defines the FCC's authority to enforce broadband policy. Fines for violations of the FCC's current network neutrality principles would be capped at $500,000 (Title II, Sec. 201(b)(2)), and the FCC would be required to conduct adjudication within 90 days of receiving a complaint (Title II, Sec. 201(b)(3)). Arguably most controversial, however, is the following provision (Title II, Section 201(b)(4)):

. . . the Commission's authority to enforce the broadband policy statement and the principles incorporated therein does not include authorization for the Commission to adopt or implement rules or regulations regarding enforcement of the broadband policy statement and the principles incorporated therein [with one exception for adjudication of complaints].

Opponents of the bill contend that the "Broadband Policy Statement" does not do enough to protect the principle of Net neutrality, and the provision banning the creation of new rules will effectively hamstring the FCC's efforts to enforce Net neutrality in the future. As a result, a grassroots effort involving a variety of individuals and groups from coalition across the political spectrum has sprung up to lobby against the current bill and in favor of provisions that would protect Net neutrality. Before this effort began, the House Energy and Commerce subcommittee rejected, by an 8-23 margin, a Democratic-backed amendment sponsored by Rep. Ed Markey (D-MA), that sought to amend the bill to offer more protection for Net neutrality. The bill went on to the full committee without the amendment with a 27-4 vote.

The central online rallying point for opponents of the unamended bill is a site called The charter members of the site are a diverse crowd that includes well-known professors such as Lawrence Lessig and Timothy Wu, and Berkman Center fellows David Weinberger and David Isenberg. The Coalition was launched on April 24, 2006, and in less than a week gathered 250,000 signatures in favor of the Markey Amendment (to be proposed in full committee since it had failed in subcommittee). (Not all of the supporters of Net neutrality are part of the "grassroots," however. Companies such as Amazon, Google, Microsoft, and Yahoo had lobbied in favor of the Markey Amendment in subcommittee, before even existed.)

The first test of the influence of and other like-minded groups came on April 26, 2006, when two votes were presented in Committee--one on the Markey Amendment, and one on the COPE Act itself. This time, the Markey Amendment failed 22-34, a much closer margin than before. (The full results of the vote are shown here.) Two of the Democrats on the committee switched their votes to favor Net neutrality, and some who had previously been undecided came down in favor of neutrality too, citing the public's sudden interest in the issue. The next step is a vote on the Markey Amendment in the full House, which will be followed by a fight in the Senate.

The above summary touches on another theme in Benkler's book--the potential of the Internet to facilitate rapid and massive mobilization on issues of interest to many people. If the description of events above is accurate, succeeded in persuading some members of Congress to vote for the Markey Amendment after Microsoft, Yahoo, and Google had failed to convince them. (One caveat: The week-old "history" of these events is being written largely by bloggers, who may wish to trumpet their own role. Nonetheless, there seems to be little evidence so far that "traditional" lobbyists did much to swing votes in favor of Net neutrality.) This parallels Benkler's discussion in Chapter 7 of how a large number of dedicated, mostly anonymous individuals can organize themselves using the Internet to achieve political change. The Net neutrality movement in some ways parallels the effort to boycott Sinclair Broadcasting in response to its plans to air an anti-Kerry documentary during the 2004 election, an example which Benkler discusses in Chapter 7 (p. 220-25). (For simplicity's sake, this section will refer to and like-minded sites/people as the "Net neutrality movement.") Like the anti-Sinclair movement, the Net neutrality movement attracted attention largely through posts to major blogs, such as Daily Kos, MyDD, and Talking Points Memo. (Instapundit, a conservative/libertarian blogger, has been active in the "Save the Internet" campaign but not the anti-Sinclair campaign.) Also like the anti-Sinclair movement, the Net neutrality movement coordinated its efforts largely through a single site created specifically for that for the former and for the latter. And both movements evidently had some degree of success. (The anti-Sinclair movement won the battle but lost the war, since Kerry lost the election anyway. Whether the Net neutrality movement will win the war, or merely win the battle by switching a few votes, is yet to be determined.)

Benkler presents three lessons of the Sinclair story, only some of which are applicable to the Net neutrality movement. First, he points out that the Sinclair story highlights the potential for mass media to abuse their position (p. 223). There is a roughly similar lesson in the Net neutrality movement, which features giants of relatively old media (cable and telecommunications) using their existing lobbying power to enhance their power in the new media. Second, Benkler says that the new media can act as a "counterforce" to old media (p. 224). This is certainly the case with the Net neutrality movement, although this is arguably a special case because many on the Internet perceive their own access to information to be at stake. Third, Benkler suggests that the anti-Sinclair movement demonstrates "the internal dynamics of the networked public sphere"--i.e. it shows how people test various strategies for action and use "hubs" like Daily Kos to share information (pp. 224-25). The Net neutrality movement offers a similar lesson about information dissemination, because Talking Points Memo, Daily Kos, MyDD, Atrios, andInstapundit have all discussed the issue and/or pointed people to It is probably too early to tell whether different strategies have been tested and rejected, but seems to be having some effect by making it easy to send letters to Congress.

The fate of Net neutrality--or at least the version of it advocated in the Markey Amendment--will be decided soon. From the perspective of COPE's opponents, this is much more than just another Internet petition, because the very nature of the Internet is at stake. COPE's supporters argue that fears about Net neutrality are overblown. In any case, it seems likely that a major battle is brewing, and the Internet itself--by facilitating the quick spread of information and making it easy to put pressure on members of Congress--may have done much to make the battle possible.