NTIA Critical of FCC Order Against Comcast That Has Three Votes

“The order appears to reverse decade-old bipartisan commitment against government regulation of the Internet, a policy that has produced immeasurable benefits for all Americans,” Baker said in an interview late Thursday. “We hope that the FCC will adhere to the longstanding policy of avoiding overly proscriptive or burdensome regulations,” she added, saying the “Internet marketplace” is “intensely competitive.”

The Bush administration’s network management principles are “longstanding” and say the government shouldn’t have a heavy hand, Baker said. She pointed to remarks on the subject made at the NCTA show in May by Commerce Secretary Carlos Gutierrez. Gutierrez said then that transparent network management was being handled through contracts, and said Congress shouldn’t pass net neutrality legislation (CD May 20 p6).

FCC Chairman Kevin Martin has indicated he agrees that further regulation may not be necessary, said a commission spokesman. Instead, the FCC can use its 2005 net neutrality principles to “guide” its review of any complaints it gets, said the spokesman. The commission has authority to act on such complaints under Title 1 of the Communications Act, which was supported by the Supreme Court’s 2005 Brand X decision, he added. “We understand and agree that network management practices are necessary in some cases, but those actions should be narrowly tailored to address a specific issue and should not be done arbitrarily and in a way that blocks specific applications, as was the case with the Comcast complaint.” The FCC order deals with a complaint by Free Press.

House Republican Leader John Boehner of Ohio also criticized the order against Comcast. “Congress has intentionally refrained from imposing the heavy hand of government, which is precisely why we have seen such rapid growth in the Internet,” he wrote Martin on Thursday. “Adding insult to injury, it appears you are wading into this debate on very shaky procedural and legal grounds.” Although the commission endorsed Internet policy principles, it “never adopted regulations through a proper notice and comment rulemaking” and shouldn’t set rules now, Boehner wrote.

Public Knowledge said Boehner doesn’t seem to realize that Comcast has harmed the Internet. “Rather than criticizing FCC Chairman Kevin Martin, Leader Boehner should praise him for putting a stop to a practice that technical experts have said is clearly outside the bounds of accepted Internet practice,” the group said. It has sought a commission ruling on network management.

Although Commissioner Robert McDowell hadn’t voted on the order by our deadline, he’s likely to vote against it before Friday’s commission meeting, said agency and industry officials. At press time, Commissioner Deborah Tate still was reviewing the order and hadn’t decided how to vote, we were told. “We're pleased that we have a tentative vote in favor of upholding the Comcast complaint,” said the FCC spokesman Thursday. “We're hopeful that after a full review by the commission tomorrow that the decision is made to move forward in a way that protects consumers and ensures open access to legal content on the Internet.”

The lack of a vote by all commissioners on the order leaves the door open for a last-minute settlement with Comcast, which would nullify that document, said agency and industry officials. But odds seem low of such a deal, they said. A Comcast spokeswoman said the cable operator expects “the FCC to vote on the agenda item tomorrow.”