SXSWORLD

Regulatory Struggle Keeps Net Neutrality Rules in Limbo By Bill Simmon brouhaha. What Topolski had caught his Internet service provider doing was precisely what proponents of net neutrality had warned about, an ISP secretly playing favorites with certain Internet connections at the expense of others. (His story is told in the new documentary, Barbershop Punk, which screened at SXSW 2010.) W hen Robb Topolski, a former Intel network products engineer, caught Comcast throttling his peer-to-peer file uploads of public domain barbershop quartet music in 2006, he unwittingly set off a broadband regulatory Hunter, Communications Director at the Future of Music Coalition and a net neutrality advocate. "Congress could, if it wanted, vest the FCC with the unambiguous power to regulate broadband." But according to political writer and Washington Monthly blogger, "One option would create a more lasting fix," explains Casey Rae- Robb Topolski at SXSW with Barbershop Punk co-directors Kristin Armfield (center) and Georgia Sugimura Archer (right). Comcast eventually admitted guilt and was punished with an admo- nition from the Federal Communications Commission to not do it again. Even though it paid no fines, the telecom giant still sued, chal- lenging the FCC's legal authority to set any regulatory tone. On April 6, 2010, the DC Circuit Court of Appeals ruled in favor of Comcast, stripping the FCC of its assumed "ancillary jurisdic- tion" over broadband under Title I of the Telecommunications Act. Topolski, who now serves as the Chief Technologist for the Open Technology Initiative of the New America Foundation, explains that in 2002, the FCC reclassified cable modem service as an "information service" instead of a "telecommunications service," thereby removing the commission's authority to regulate high speed Internet commu- nications under the common carrier rules found in Title II of the Telecommunications Act. At the time, the FCC assumed it still had some regulatory power over the industry if needed. "It turns out," says Topolski, "the authority that the FCC assumed it had over 'information services' is the authority that the [DC Circuit] court says never existed." The federal court decision left Internet rules in limbo, effectively leaving ISPs to police themselves. Though with the Obama administra- tion's new National Broadband Plan, which relies in part on the FCC's power to regulate the broadband industry, in peril, the government had to act on at least one of two courses of remedial action. 32 SXSW ORLD / M AY -J UNE 2010 Steve Benen, a congressional solution is unlikely: "Congress' plate is pretty full for the remainder of this term, and unfortunately, next term isn't looking like it's going to be any better." Benen points to the likeli- hood that Democrats will lose seats in the November elections, making any congressional push to increase government's regulatory power even more difficult. So instead the focus shifted back to the FCC, and on Thursday, May 6, Chairman Julius Genachowski announced that he would seek middle ground between the net neutrality and non-regulatory positions (which he called "the Third Way") by reclassifying broadband as a regulated service under Title II, but also outlining that the agency would keep the regulations narrow, to not unduly hamper ISPs. Rae-Hunter is cautiously optimistic: "The Chairman seems to have made the right move here. By classifying the "transmission" component of broadband under Title II but not applying all the cards in that section's regulatory deck, he's helping to shore up the Commission's legal authority to preserve an open Internet and get broadband service to more Americans. It's just the start, but it's a good one." The next step is a public comments period, after which the commission will vote on the measure. With three of the five commissioners, including Genachowski, already publicly endorsing it, passage seems assured. According to Rae-Hunter, the FCC is well armed for the IPSs' cer- tain legal challenges: "The 2002 reclassification was based on a set of market assumptions that don't hold true anymore." The FCC also has an important court precedent in its favor: the Supreme Court's 2005 National Cable & Telecommunications Association v. Brand X decision affirmed the FCC's right to classify these services as it sees fit. Still when interviewed prior to Genachowski's announcement, Topolski warned that "the carriers have promised Holy Hell if the FCC were to take that action [undoing the 2002 decision]." Though Comcast has publicly offered to cooperate with the FCC on a compro- mise, public statements from other major telecom companies support Topolski's statement, pointing to a protracted legal, and possibly leg- islative, battle to follow the FCC's action, with carriers arguing that regulation will lead to the loss of both revenue and jobs. However, for net neutrality advocates, innovation and the ensuing business development are precisely why controls on ISPs are needed. Without an open Internet, Rae-Hunter says that "the next awesome thing that you use and depend on every day might not exist. Do you trust Comcast to build it for you?" n Scan the QR code at the top of the page to view the Barbershop Punk trailer. For instructions on how to install and use a QR code reader, visit sxsw.com/qrcodes. ZIV KRUGER

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