< Command and Control


Friday, April 09, 2010

BOB GARFIELD: Who controls the Internet is a complicated question but, as a practical matter, who controls the Internet is whoever gets it to you. For most Americans, access is controlled by their Internet service providers, or ISPs – Verizon, Time Warner, Comcast, and so on. And until this week the only real check on ISPs’ power was the Federal Communications Commission. It was in that capacity that the FCC sanctioned Comcast in 2008 for slowing Internet speeds or for interrupting the service of customers who were uploading huge files on BitTorrent, essentially penalizing those customers for using too much bandwidth. But on Tuesday, an appeals court told the FCC that its censure of Comcast would not stand, that the FCC has no jurisdiction over Internet regulation. That decision has freed up the ISPs to deliver the Internet to their customers however they wish. What’s more, it has jeopardized the FCC’s most ambitious foray into Internet regulation yet, its new National Broadband Stimulus Plan. Gigi Sohn is the president of Public Knowledge, a group that advocates equal treatment for all Internet users, what’s known as net neutrality. Scott Cleland is president of Precursor LLC, an advocacy group funded by ISPs. Gigi and Scott, welcome to the show.

GIGI SOHN: Great to be here, Bob.

SCOTT CLELAND: Yes, it’s great to be here.

BOB GARFIELD: So, let's start with something you can probably agree on, I hope. What is [LAUGHS] net neutrality, what does that mean? Gigi?

GIGI SOHN: The Internet is the most democratic medium the world’s ever known. It was built to put control in the hands of the users, not control in the hands of the telephone companies and cable companies that provide the on-ramps to the Internet. Net neutrality preserves that openness.

BOB GARFIELD: And Scott, tell me why that definition isn't exactly right, or is it?

SCOTT CLELAND: Companies are in the business of letting consumers get to the websites and the applications of their choice. That’s their business. So they are interested in having an open and neutral Internet. The difference is, is that it’s being done that way and has been done, and been done successfully, in a voluntary way for the last six years. Literally, in the quadrillions of communications that happen each year, there have been two incidents in six years that they've said were a problem. It’s like saying because there’s two grains of sand that are a problem on the beach let's shut down the beach. There’s no need to regulate it because of all the unintended consequences that come along.

BOB GARFIELD: What is the fear of net neutrality advocates that ISPs will do if, in fact, there is no one to intervene?

GIGI SOHN: Well, first of all, Comcast and the other incident that Scott refers to, they're not the only two incidents of blocking or throttling. So AT&T has already been known in its wireless service to block the Slingbox application, to block a Skype application. It censored a Pearl Jam concert because the, the band sang something that was negative about Bush. If you look at the terms of service of every single wireless company, they block certain applications. So there've been more than two grains of sand, but it’s more than that. There are many, many others instances we may not even know about. Here’s another important point. Pretty much every single company in this space has said that they want to charge Google, eBay, Amazon for quality of service, which means faster speed, less jitter. They've already said that. So the notion that they don't want to engage in anything but neutral behavior is, is just wrong. It’s part of their business plan. They see the kind of money Google is making and they say - I want to get me some.

BOB GARFIELD: Someone has to be paying attention to the business of the Internet, to the openness of the Internet, to the communications aspect of it. The government will have a role in this. The FCC planted its flag in the soil only to be turned back by the courts. If not them, who?

GIGI SOHN: So Congress could pass a law giving the FCC the legal authority to protect consumers, but that would probably take years, if at all. And you have a highly partisan Congress. You already have the Republicans coming out and saying we don't want the FCC to regulate this at all. So what happens to consumers, in the meantime? I don't think the FCC has a prayer if it asks the DC Circuit, which is the court it lost in, to rehear the case. And they could even get a worse decision. So, so that’s not an option. The FCC does have an option though that I and many others believe makes sense. It could reverse its 2002 decision that deregulated Internet access in the first place. Okay? That’s what got us into this mess.

SCOTT CLELAND: Well, let's remember that Congress deregulated, on an overwhelming bipartisan basis, in 1996, and it has worked, and it has produced an Internet that everybody thinks is a phenomenon that is extremely useful. So I kind of reject the notion that jurisdiction here is really important because consumers are getting the applications and the content of their choice. Why are we going through all of this enormously intrusive regulatory discussion that can essentially kill the goose that laid the golden egg?

BOB GARFIELD: But, as the FCC itself said in introducing its ten-year broadband plan, we do have a problem. The costs are very high, relative to the rest of the world. The download speeds and upload are very slow, compared to the rest of the world, and no relief in sight. At a minimum, if the FCC loses jurisdiction here, what about its ten-year plan to bring the United States kicking and screaming into the 21st century?

SCOTT CLELAND: I just have to completely reject that notion in the sense that the United States leads the world in broadband competition and in broadband, and the United Nations numbers say that the U.S. has the least expensive broadband out there. That’s the fact. We have the highest utilization and the most use of any nation in the world. We also have more fiber deployment to the home than any nation in the world and more than Europe in entirety, so this notion that the United States [is] behind is basically a ruse to regulate, when it simply doesn't fit the facts.

GIGI SOHN: I mean, of course we have the highest use because we have one of the biggest countries in the world, okay, other than China, which isn't very advanced in this technology. So, that’s ridiculous. Every single international study has shown that we're, like, 15th, 20th in the world in speed and value. But I want to get back to your core point, Bob. The FCC’s General Counsel Austin Schlick says that essentially half of the National Broadband Plan is jeopardized by the Comcast decision. The FCC wanted to increase funds for universal access to broadband. That’s in jeopardy. Any subsidies for the poor to get broadband, to adopt broadband, consumer privacy protections, emergency communications for first responders, disability access, transparency rules that would allow consumers to know what kind of speed they're getting and what kind of network management their Internet service providers are engaging in, that’s all in jeopardy. Look, Congress told the FCC to do this national broadband plan. They weren't planning on it. They've been working night and day for the last six months and, and last month they introduced an over 360-page plan. Without legal authority, they cannot implement half of that plan.

SCOTT CLELAND: Look, the United States already has broadband available to like 95 percent of the country. Do they have competition in every place? Not yet, but competition is there in most places, and it is available. It needs greater adoption, and that’s where the focus should be.

BOB GARFIELD: How can we trust the ISPs, who seem to have structural conflicts of interest, to make the right decision for the society?

SCOTT CLELAND: The reason you can trust the ISPs is they have done it and done it well for decades, and certainly for the last six years, where there haven't been these rules. And they have no interest in denying their consumers what they want. So the whole net neutrality debate is really a slogan in search of a problem.

BOB GARFIELD: Thank you both very, very much.

GIGI SOHN: Thanks, Bob.


BOB GARFIELD: Gigi Sohn is the founder and president of Public Knowledge. Scott Cleland is the founder and president of Precursor LLC.