Network Neutrality Missing in Genachowski Praise

By Roy Mark  |  Posted 2009-03-04

Network Neutrality Missing in Genachowski Praise

In the gush of praise for Julius Genachowski's March 3 nomination as the next chairman of the Federal Communications Commission, two words were often missing: network neutrality. Perhaps reflecting the delicate nature of the issue in Washington, virtually no one was talking about it, even those who are confident that Genachowski will warmly embrace network neutrality policies.

As the obligatory plaudits piled up in the wake of Genachowski's nomination, only CCIA (Computer & Communications Industry Association) President and CEO Ed Black brought up network neutrality, and he was somewhat vague regarding Genachowski's part in it.

"Decisions now on issues such as network neutrality and wireless spectrum reform will be especially important because they will be incorporated into the very fabric of the Internet and telecommunications going forward," Black said in a statement. "As demonstrated by his work on the Obama campaign's policy positions, [Genachowski] is sensitive to the legitimate concerns of the many stakeholders, including government, industry and consumers. We are very confident that Julius Genachowski gets it!"

A top aide to two former Democratic FCC chairmen, co-founder and managing director of LaunchBox Digital and Rock Creek Ventures, a former executive with Barry Diller's IAC and a board member of several Internet ventures, including Expedia and The Motley Fool, Genachowski is widely considered to be an architect of President Obama's Technology and Innovation Plan, which supports "the principle of network neutrality to preserve the benefits of open competition on the Internet."

Network Neutrality Missing in Genachowski Praise

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Gigi Sohn, president and co-founder of the very pro-network neutrality organization Public Knowledge, said she has known Genachowski for 15 years in his various public and private roles.

"I believe that in his new role Julius will work to ensure that the FCC meets its legal obligation to protect the 'public interest, convenience and necessity' and will develop a principled, strategic policy agenda that promotes openness, free speech, competition, innovation, access, economic growth and consumer welfare," Sohn said.

But openness is not network neutrality, as illustrated in Obama's stimulus package and the 700MHz spectrum auction held in 2008. The stimulus legislation requires that any organization receiving grants or loans to build broadband networks allow any legal device to be connected to the new networks. Network operators are prohibited from discriminating in the handling of network traffic, at least as defined by the FCC's network neutrality principles, which are currently under legal challenge by Comcast.

Similarly, winners of the 700MHz spectrum are required to permit the use of any device and any application on the network.

In both cases, winners of the stimulus money and the 700MHz spectrum are not required to permit other service providers to connect to the network at wholesale rates, nor are they required to make important network interfaces available to those providers, which Public Knowledge says is essential to a true network neutrality policy.

"These are pro-consumer conditions for sure, but do not accomplish the one goal both the FCC and Congress set for the auction: creation of a third broadband service provider that can compete with cable and telephone companies, which control 96 percent of residential broadband lines in the United States," Sohn wrote before the auction.

And as Public Knowledge Communications Director Art Brodsky noted of the stimulus, "It's important to realize that whatever open network and nondiscrimination conditions are applied as part of the stimulus will be very limited in scope, applying only to projects generated as a result of grants, loans or loan guarantees made under the legislation."

In other words, it's not network neutrality.

In August 2005, the FCC declared that consumers are entitled to access the lawful Internet content of their choice, run applications and services of their choice, and plug in and run legal devices of their choice. The FCC also said consumers have a right to competition among network providers, application and service providers, and content providers.

As soon as the FCC promulgated its network neutrality principles, questions began over the agency's legal authority to make such rules. Indeed, when the FCC found Comcast guilty of violating the agency's Internet policy when it blocked peer-to-peer traffic by BitTorrent, Comcast went to court to challenge the FCC's authority.

If, as expected, Genachowski is approved by the Senate, he faces a multitude of problems at the FCC, including the digital television transition, the unsold block of spectrum dedicated to public safety and, of course, network neutrality.

"Much like [Obama] himself, the next FCC chairman will be forced to hit the ground running from Day One. The importance of Genachowski's position should not be overlooked," Black said. "The next chairman is poised to confront major policy issues that will impact the future of the Internet and our digital economy."

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