FRAMINGHAM 3 FEBRUARY 2011 - MIAMI -- Former Federal Communications Chairman Kevin Martin yesterday said he still believes the FCC had the legal authority to enforce network neutrality rules and that he would have appealed a court decision last year that ruled otherwise.
Speaking after his keynote question-and-answer session at this week's ITExpo conference in Miami, Martin said that the FCC's 2008 order telling Comcast to stop throttling peer-to-peer protocols was on solid legal footing.
Net neutrality refers to the principle that ISPs should not be allowed to block or degrade Internet traffic from their competitors in order to speed up their own. The push for net neutrality began in 2005, when incumbent telecom carriers successfully lobbied the FCC to repeal common carrier rules that required the incumbents to allow ISPs to buy space on their broadband networks at discount rates.
In response to concerns from both Internet companies and consumer advocacy groups, the FCC subsequently adopted a policy statement that said "consumers are entitled to access the lawful Internet content of their choice" and "consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement." The FCC used this policy statement as a guideline to bar Comcast from slowing targeted applications or protocols when managing traffic, as it had done with popular peer-to-peer protocol BitTorrent before 2008.
However, that order was overturned when the Washington, D.C. appeals court said the FCC did not have the authority to regulate ISP network management under its current legal framework, as the FCC has classified ISPs as Title I information services that are not subject to FCC regulations over issues such as rate setting and universal service obligations.
Martin said that while the FCC under current chairman Julius Genachowski did not appeal the court's decision, its adoption of more watered-down net neutrality rules will likely have the same effect since it has already sparked lawsuits from carriers such as Verizon and MetroPCS. In other words, the FCC will have to re-litigate the net neutrality fight whether it wants to or not since any rules that it adopts are going to be fiercely challenged.
Martin also said that he opposed Genachowski's initial proposal that would have reclassified broadband as a Title II telecommunications service while simultaneously exempting it from the vast majority of regulations in the current common carrier rules. Although Martin understood that Genachowski was exempting the carriers from the majority of common carrier regulations, he also said that broadband was a far more complex service that needed more flexible regulation than reclassification would have allowed for.
"Regulating broadband as a Title I service is better than doing it as Title II," he said. "I don't think that was a good idea and I didn't do it while I was chairman."
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