One of the more interesting statements in the Comcast/FCC hearings recently was made almost two months ago, when Comcast argued that:
The FCC “Internet policy statement, in which it [the FCC] endorses net neutrality in general, ‘was not published in the Federal Register and is not contained in the Code of Federal Regulations,’ and therefore does not have ‘binding legal effect.'”
(It actually got better as Comcast’s counsel couldn’t seem to understand questions about that statement, or his company’s position.)
As I noted at the time, generally speaking, it’s not the best bargaining tactic to tell the federal regulatory agency over your industry that they don’t have the authority to enforce their stated policies. (And, as a refresher, the FCC is not Congress. They don’t have to follow the rule of law. This is administration, not governance.)
Apparently, the FCC finally got around to reading those Comcast filings. Yesterday, FCC Chairman Kevin Martin told the Senate Commerce Committee that “I do not believe any additional regulations are needed at this time” to enforce Net Neutrality:
In a manner similar to the way in which restrictions on speech are analyzed, network management solutions would need to further a compelling or at least an important/legitimate interest and would need to be tailored to fit the exact interest. If the concern is about stopping illegal content, a network provider should not block a particular application to all users if that application transmits both legal and illegal content.
Actress-cum-Internetrepreneur Justine Bateman was on hand to testify as well, succinctly summing up the fears of many of her ilk (though Business Week points out some pretty strange statements of hers as well):
The idea of your site succeeding or failing based upon whether or not you paid the telecom companies enough to carry your material or allow quick access is appalling.
I have to point out that there’s a really strange dichotomy when we take this business debate into the political sphere. On the one side, there are the people who want to preserve the free market by not regulating or interfering with the operations of Internet service providers. On the other side, there are the people who want to preserve the free market by not regulating or interfering with the free exchange of information over the Internet. (And now the media is trying to make this into a party-line issue. Clumsily, too.)
However, the political side of the debate may be necessary. As President of the Writers Guild of America, West, Patric Verrone, told the committee, “The only thing bigger than corporations in this country is the government. So we think we have to make clear to legislators that we need somebody making sure that that pipe is neutral.”
There have been Net Neutral overtures in the Congress over the last year and a half, but none have come to fruition. Barring any real action by Congress (which is usually a safe bet ), the FCC’s assertion will basically carry the force of law. Even Comcast couldn’t argue now, since Martin’s statements should be entered in the Federal Register. Or at least aired on CSPAN.