Net neutrality, part three

3. what the FCC has been doing and not doing

3.1. "The Federal Communications Commission today adopted a policy statement that outlines four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of public Internet: (1) consumers are entitled to access the lawful Internet content of their choice; (2) consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; (3) consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) consumers are entitled to competition among network providers, application and service providers, and content providers. Although the Commission did not adopt rules in this regard, it will incorporate these principles into its ongoing policymaking activities. All of these principles are subject to reasonable network management." - August 5, 2005 policy statement

3.2. some people blame primarily the FCC for the lack of competition, for deciding that broadband connections not subject to common carrier rules under the Telecommunications Act

3.2.1. "The reason we are having a fight over network neutrality now is that the government took a wrong turn about five or six years ago, and decided not to require open access by broadband providers." Jack Balkin

3.2.2. formerly, under the Telecommunications Act of 1996, the CLECs (competitive local exchange carriers) got to share elements of the RBOC's (regional bell operating companies) and the ILEC's (incumbent local exchange carriers) networks - 1996 Act requires sharing of "telecommunications" services but not "information" services, and at one time some happy optimistic people thought that the cable companies also would have to share their networks

3.2.2.1. 1996 - we thought we were bad if we could connect to AOL at 14.4 k over the telephone, via a long-distance number

3.2.3. the FCC refused to classify the cable networks as providing "telecommunications" services subject to the sharing requirements, etc., of the 1996, so there never has been sharing of the cable networks, and the Ninth Circuit in 2003 and later the Supreme Court in June 2005 upheld this decision in the Brand X case (6-3 decision by Justice Thomas, with Scalia, Souter, and Ginsburg dissenting - talk about strange bedfellows)

3.2.4. after the Brand X decision, on the same day as their declaration of principles, the FCC reclassified DSL also as an "information service," with the effect of eliminating sharing of the telephone networks for DSL connections

3.2.4.1. "Today, we decide that the appropriate framework for wireline broadband Internet access service, including its transmission component, is one that is eligible for a lighter regulatory touch." - FCC

3.2.5. now the CLECs and DLECs (data local exchange carriers) have largely gone the way of the Dodo, most sharing ended by 2005

3.2.5.1. supposedly, there are 168 CLECs approved by the State Corporation Commission as of 2005, down from 191 at end of 2003

3.3. FCC says broadband is 200k, up and down, and that broadband is available in 99% of U.S. as of July 2006 (summary); (report)

3.3.1. "This checkpoint marks the first time at least 99 percent of all US zip codes have access to at least one broadband service, leaving parts of Alaska, most of the Florida Everglades, and a huge chunk of Northern Maine in the digital backwaters for now" – Ars Technica

3.3.1.1. there are places in Southwest Virginia (Rose Hill?) that have no DSL or cable, but then there are places in Southwest Virginia with no public water or sewer

3.3.2. GAO says FCC not measuring broadband fairly and accurately - May 2006

3.4. FCC commissioner Copps claims agency can act against network discrimination under existing law -

3.4.1. "The Federal Communications Commission has authority under current law to ensure that broadband-access providers -- currently mainly cable and phone companies -- do not discriminate against Web-based providers of content, search services and applications, FCC commissioner Michael Copps said Tuesday. Speaking to reporters, Copps stressed that it was essential for the agency to go beyond hortatory policy principles and adopt enforceable rules that guarantee network neutrality and shield Internet companies without wires into millions of homes from potential misconduct by companies that control those wires. “I think we have authority to go now to the second phase of network neutrality, to make sure that there's not discrimination against those that are not affiliated with the network owners,” Copps said in a press briefing held in his office here. FCC chairman Kevin Martin, however, has favored a deregulatory approach. Last August, he won agency adoption of nonbinding principles related to net neutrality, but he has not endorsed the need for specific agency rules that Copps wants."

3.4.2. "We need to...figure out, practically speaking, how do we ensure that there's not discrimination on the Internet." Copps interview