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Art Brodsky

Art Brodsky

Posted: October 2, 2009 10:18 AM

Oh, the Hypocrisy! The Vote To Regulate the Internet as More Media Consolidation Looms

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It is truly ironic that the debate over whether the Internet should legally be an open and non-discriminatory environment is taking place as Comcast, one of the biggest providers of Internet service, is in talks to buy control of NBC-Universal, one of the biggest providers of content. As the club of media owners shrinks, policymakers need to be even more vigilant that the Internet fosters creativity and opportunities.

If the Knight Commission thinks there's a problem with news and information getting through to the public now, just wait until the Internet and news sources become even more consolidated.

What we get instead is a remarkable display of Congressional hypocrisy along with some nasty, and silly, industry counterattacks in a way to preserve their own businesses at the expense of everyone else. What happened? House Republicans on the Energy and Commerce Committee voted to regulate the Internet. Really. So did Democrats, but many of them don't find that as abhorrent as the Republicans say they find it.

After all their talk about how the government should stay out for fear of hurting technology, innovation, yada, yada, the Committee on Sept. 30 passed a bill put requirements on peer-to-peer (P2P) software passed by voice vote with enthusiastic endorsement from even the most dedicated opponents of making sure the Internet functions free of discriminatory control by the telephone and cable companies.

The bill the Committee passed, HR 1319 is, as my colleague Alex Curtis explained a bad idea for any number of reasons. It's drafted too broadly, it won't solve the problem it is supposed to solve, and the so-called "bad actors" in the peer-to-peer industry have done exactly what members of the Committee chastised them for not doing - they fixed the problem of inadvertent disclosure of files from the hard drive.

What it does so is to require developers of peer-to-peer software to meet certain requirements. The fact that most such developers have done this already is of no consequence to the bill's sponsor, Rep. Mary Bono Back (R-CA) and other supporters. The fact that the Federal Trade Commission is also actively on the case also is apparently irrelevant.

Here's what is relevant. First, that the bill is part of the efforts of Bono Mack (Our Lady of Perpetual Copyright) to crack down on anything that might hurt Big Media. Peer-to-peer distributes video in an efficient manner. Her bill hobbles it, using the smokescreen of security issues that are well on their way to being resolved.

Second, the bill regulates the Internet. That's right. All of those members of Congress who constantly rail against regulating the Internet in an effort to protect the businesses of AT&T, Verizon, Comcast and the rest are now doing what they said they would not do. For example, this from Bono Mack's Web site:

The Internet has transformed the American and global economies. Today, commerce and communications move instantly from all points. A large reason this technology has become so integral to our lifestyle and grown so quickly is due to the government's reluctance to regulate the internet. This hands-off approach has allowed the technology to achieve things no one could have expected.

She also makes this exception, which is fine:

The Internet, however, is not without its bad actors. I am a strong advocate of privacy protections and cyber security. Whether it's tracing online child predators or identity thieves, I believe law enforcement should have the tools they need to track down those who prey on the innocent.

Privacy protections and law enforcement are worthwhile exceptions to the rule. But telling software developers how to write their products? Particularly in a P2P environment in which personal computers upload information to the Internet in a bandwidth-efficient manner? Even in the best case, this is intervention on the "hands-off approach" that no self-respecting opponent of Net Neutrality should endorse.

Bono Mack isn't the only one, of course. To pick one other member of the Committee at random, look to another Californian, George Radanovich (R). He supported Bono Mack's bill because of past problems with P2P software, saying the problem of files popping up where they shouldn't is "inadvertently exacerbated by the architecture of the programs." It's unclear to users what files may be open to others on a network, and it's difficult to change software settings, Radanovich explained.

How does that statement from the Sept. 30 markup square with this from a news release the Congressman released on Sept. 21: "Radanovich Objects to Genachowski's Call for Increased Government Encroachment into the Internet." He said that the Net Neutrality rulemaking that FCC Chairman Julius Genachowski will introduce later this month is something "that could significantly expand the federal governments reach into the operation of the Internet."

Radanovich said:

One of the internet's most valuable qualities is that it has always been open and free from government intervention, which has driven innovation, created new opportunities and jobs, and guided the internet into the great success it is today.

Spoken like someone who a week later supports a bill that would set specific requirements within a piece of software that's a connection to the Internet through P2P.

The Net Neutrality debate is getting stupidly ugly very quickly. The meme that AT&T, Verizon and their minions are spreading on Capitol Hill is that Net Neutrality is "anti-business." On its face that's laughable, but gullible legislators will buy it coming from all the bought-off business groups that the telcos and cable companies send up to lobby Congress. The big companies are floating that in an effort to gain support for an amendment to a spending bill that would prohibit the FCC from doing a Net Neutrality rulemaking. AT&T, Verizon and the rest are targeting the so-called "moderate Democrats" on the Senate Commerce Committee who consider themselves as business supporters, such as Claire McCaskill of Missouri, Mark Warner of Virginia or Mark Pryor of Arkansas. A member of Congress or Senator who hears "anti-business" in the middle of a recession will, without thinking, vote to stop the dreaded FCC. It's time for them to stop and think.

A rule to make sure that everyone has equal access to the Internet and to everyone online is a great leveler. It is pro-business, in that it creates opportunities for those who can't afford the favored treatments that would be available to some, but not to others, absent a firm Net Neutrality rule. Any small business owners who want to do business online without paying a "quality of service tax" or other extra electronic blackmail charge that would be levied on captive customers, should let their member of Congress know that Net Neutrality protects small business. AT&T's arch-enemy, Google, is a fine example of a company that its founders say wouldn't have been able to exist or to grow without unrestricted access to the Internet. Say what you will about the company now, but its growth is Exhibit A for what can happen under the neutral Internet when the company was created and growing.

The other scenario being thrown around is that a Congressional amendment would allow the FCC to proceed with Net Neutrality for wired services like DSL or cable, but not for wireless. That, similarly, makes no sense. A laptop connected to the Internet, is connected to the Internet, whether by a cord or by a modem. There should be no difference. AT&T shouldn't be able to say that customers can receive AT&T's video services, but not those of a competitor like Sling's.

And yet, again, there might be some legislators who would vote for such a bill looking for that mythical compromise that in reality isn't a compromise but would compromise the fastest growing part of the Internet.

House Republicans are circulating a letter aimed at slowing down the process by asking the FCC to conduct studies showing whether today's Internet Service Providers have "market power" and asking the Commission to show that the broadband market isn't as competitive nationally as the Commission said it was back in the Bush years when it deregulated cable modem, DSL, broadband over power lines and wireless broadband. Note to those House Republicans: If you really want to repudiate in an official record all that your FCC did, it can be done in the context of the Net Neutrality rulemaking. You won't like the answers.

And all of this is happening before the FCC meeting on Oct. 22 to start the rulemaking. Then watch out. And keep watch on the Comcast-NBC deal to make certain that consumers will continue to have an open Internet and continued access, online or on cable, to programming.

 

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