Testimony of Larry Downes, TechFreedom Page 3
majority instead has issued what it calls
it hopes will deter anyactual problems in the future. But it is worth noting that the ruled as adopted wouldonly apply to at most one of the four incidents, which involved a small local ISP allegedin 2005
to have blocked its customers’
access to Voice over Internet Protocol (VoIP)telephone service.
The final rules reflected little change from the original draft
- In contrast to heatedclaims that the FCC sold out the net neutrality principle over the course of its year-longproceedings, the final rules differed very little from those first proposed in October,2009. The most significant change was to scale back regulation of mobile broadbandbased on overwhelming evidence of the fragility of this emerging platform. But eventhe Notice of Proposed Rulemaking (NPRM)
issued in October 2009 expressed doubtsabout the wisdom of subjecting wireless to the new regime.
Enforcement mechanisms are complex and expensive
- The enforcement provisions,longer than the rules themselves, create a dangerously unbalanced private right of action for individuals to initiate complaints based on little or no evidence of violations.The costs of investigation and enforcement are outsourced to the defendants and to theagency, creating perverse incentives that will likely generate numerous frivolousadjudications. The Report and Order includes little to no discussion of these costs, yetproudly concludes that the rules will impose few new burdens on broadband Internetaccess providers.
Exceptions reveal a
profound misunderstanding of “the Open Internet”
- The Reportand Order detail over a dozen significant exceptions, caveats and exemptions for non-neutral network management practices, services, and outright exclusion for someclasses of broadband Internet access providers. In some cases, the services are new; inmost, the non-neutral techniques have become entrenched and vital features of theonline experience for consumers.While the agency was correct to limit its new rules, the list is by no means complete noris the evolution of network practices mature. The
these and no more
exceptions,arbitrarily dated to the point of issuing the rules in late 2010, means that futuredevelopments will be subject to FCC approval. This will unintentionally skew, slow, orstunt the next generation Internet ecosystem in ways that will threaten U.S.competitiveness in the most global of all markets. The majority have promised to
The phrase “prophylactic rules” appears eleven times in the Report & Order.
Madison River Communications
, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (EB 2005).
resolved via consent decree that the FCC agreed “does not constitute either an adjudication on the merits or afactual or legal finding regarding any compliance or noncompliance….”
Federal Communications Commission,
In the Matter of Preserving the Open Internet
Report & Order,
We expect the costs of compliance with our prophylactic rules to besmall, as they incorporate longstanding openness principles that are generally in line with current practicesand with norms endorsed by many broadband providers