The FCC should approach the Internet with "vigilant restraint" rather than new regulations, says the National Cable & Telecommunications Association in comments on the FCC's proposed codification and expansion of the four openness principles in its Internet policy statement.
That means not codifying and not expanding those principles, which NCTA said would be "unwarranted and counterproductive."
Replacing such historic restraint with regulation would discourage investment and innovation by Internet service providers and content and applications developers, the group argued. And if there are rules, NCTA said, they must be narrowly tailored, "prophylactic," and apply to all competing access providers--that would include wireless--and to other "gateways," which NCTA says would include content and applications providers and search engines like Google.
NCTA says the wireless industry is already restricting access to content and applications via such "walled gardens" as the iPhone
The use of the term "gateways" is carefully chosen, since FCC Chairman Julius Genachowski has said that networks were the "gatekeepers" in need of monitoring, while NCTA suggests there are more gates and keepers to mind if the FCC wants to get into that business.
NCTA argues the commission's effort to "fundamentally alter the regulatory environment" for what NCTA says is already an open Internet is an odd approach. The group called net neutrality supporters' claims that classifying cable modems as an information service was a reversal of longstanding ISP regulation not true, adding that vigilant restraint had been the FCC's approach.
"The commission should refrain from adopting any rules at this time," NCTA said, and should not codify the four current ones either.
And if the FCC does adopt the rules, NCTA argued, they will likely not survive First Amendment scrutiny. "The Internet, while serving many purposes, is primarily a marketplace for speech, and under the First Amendment, any government interference with a marketplace for speech is highly suspect," said NCTA. "In such a marketplace, the First Amendment protects not only those who create speech, but also those that provide a forum for its communication to the public - and the proposed rules would restrict the protected speech of both."
Under the proposed codified existing principles, and with a carve out for reasonable network management, Internet Access Service providers:
1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;
2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user's choice;
3. would not be allowed to prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network;
4. would not be allowed to deprive any of its users of the user's entitlement to competition among network providers, application providers, service
providers, and content providers.
In addition, the FCC would add and codify two new principles that would require ISPs to 5. treat lawful content, applications, and services in a nondiscriminatory manner; and 6.disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking. "
The deadline was Jan. 14 for initial comments in the FCC's Notice of Proposed Rulemaking on so-called network neutrality rules. NCTA had company, with thousand of comments filed from companies, associations and members of the public.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.