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The uneven battle lines around the FCC's Net neutrality proposal [UPDATED]

January 14, 2010 | 12:42 pm

The Federal Communications Commission's proposed Net neutrality rules have caused a bit of a shuffle among advocacy and lobbying groups. The folks who oppose government interference in private markets are, predictably enough, arguing against the rules. See, for example, the comments by the Progress & Freedom Foundation, NetCompetition.org, the American Consumer Institute Center for Citizen Research, the Technology Policy Institute and the Internet Innovation Alliance. But on the other side of the ideological divide -- the groups that tend to distrust corporate power more than government regulation -- the responses haven't been so uniform. Yes, there's plenty of support for the new rules from the likes of the Open Internet Coalition, the Media Access Project, Common Cause and Public Knowledge. But there's also uneasiness in this camp about inviting government to meddle with the Net. That reflects the widely held belief among tech advocates that the Web has prospered in large part because no commercial or governmental entity has wielded power over it.

A good example is the Electronic Frontier Foundation, which filed its comments today in opposition to the proposed rules. The EFF is a strong proponent of online freedom -- that's practically the group's raison d'être. It was a vocal critic of Comcast when it surreptitiously interfered with BitTorrent traffic in 2007, and has offered Internet users a tool to help them detect similar violations of Net neutrality by their ISPs. Nevertheless, the group doesn't believe the FCC has as much authority to regulate as the commission asserts.

According to the EFF, competition among Internet service providers is the best defense against ISPs unfairly favoring some types of content or traffic over others. But with many parts of the country having only one or two sources of broadband connections, the EFF says, there is a role for government to play -- provided that Congress sets the limits:

While the question of how to best protect the openness of the Internet is a timely and
important one, it is not for the Commission to answer in the absence of statutory authority from
Congress. Congress has not expressly delegated any authority to the Commission to issue the
broad regulations on ISPs that it has proposed in the NPRM.

If the FCC insists on moving ahead, the EFF says, it should take care not to let ISPs block lawful content in the name of protecting copyrighted material. (The group has no objection to ISPs blocking infringing material or other illegal content.) And it should exempt noncommercial Internet providers (such as open WiFi or municipal networks) from the rules, so as not to deter them from providing such services.

You can read EFF senior staff attorney Fred von Lohmann's explanation of the filing at the EFF blog.

Updated, 1:45 p.m.: Andrew Jay Schwartzman, president and CEO of the Media Access Project, pushed back a bit on the issue of the FCC's authority to regulate. The EFF was responding to the commission's assertion that its "ancillary" powers under the Communications Act supplied the authority to adopt Net neutrality rules. According to Schwartzman, the FCC clearly has the authority to regulate communications service providers under Title II of the act (the one that generally applies to dial-tone services). But previous commissions reclassified DSL and cable-modem connections as "information services," which are subject to far less regulation.

"So the FCC has a second option, which is to 'reclassify' broadband as a Title II service," Schwartzman said in an e-mail. "While one can say that this is a good or a bad idea, there isn't a lot of dispute that the FCC could revert to its prior practice.  Our comments (filed with the usual suspects you name in your piece) suggests that the FCC should do so."

-- Jon Healey

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