An Open Internet is the Goal of Both Our US Delegation at ITU and the FCC

October 28, 2014

The International Telecommunication Union (ITU) is an arm of the United Nations and is dedicated to global coordination of things like satellite orbital slots, terrestrial spectrum use, and technical standards for interoperability of telecom networks.  Currently the ITU is in the midst of a weeks-long meeting in Busan, South Korea. Already, the former Deputy Secretary General, who is from China, was elected Secretary General, as expected.

Some nations clearly want to expand the ITU’s mission to include content on the Internet. Others are pushing for international regulation of interconnection rates and routing of data traffic flows. Parochial concerns about online privacy, security, social problems and cultural norms tend to creep into ITU discussions and proposals, even though the offline world already has structures to deal with these.

The FCC Open Internet proceeding is about making sure that U.S. homes and businesses have open access connections to the Internet. True Internet freedom means that no nation’s government or their telecom monopoly or private duopoly/oligopoly Internet access providers should act as content gatekeepers for Internet access service.

No end user can simply click away from their broadband provider to a more open transmission line if their ISP is messing with their content choices or data throughput. So the U.S. applauds any and all other nations that by law guarantee their own citizens and businesses open access to the Internet.

On the other hand, multilateral or international regulatory control would be a disaster for the global Internet.  The traditional multi-stakeholder model of Internet management by a conglomeration of engineers, industry, governments and civil society from all over the world has been working well, is constantly being improved, and is becoming better understood by more countries — particularly since the groundbreaking and successful Net Mundial convention in Brazil last spring.   So the US delegation to the ITU meeting in Busan is collaborating with like-minded reps from other countries and most continents to further advance that broader understanding about the importance of non-governmental global “governance” of the Internet.

All Internet access and digital data and video transmission from the 1990s until 2005 (other than cable modem connections) was provided on a common carrier basis under Title II of the Telecom Act of ’96 as implemented by the FCC. Online innovation flourished in part because network providers could not technically or legally discriminate against other companies’ websites, content or services.  The networks have since developed technology to track sources, content and destination of their traffic, and that enables anticompetitive discrimination and degradation of online market access.

That same technology also enables sophisticated censorship and tracking of citizens by repressive regimes.

The Telecom Act does not regulate true information services like AOL, Yahoo!, Ebay, Amazon or Google, but it does mandate universal access to telecom network connections and interconnection among telecom transmission networks.  With the advent of broadband, cable companies and telcos convinced the FCC that their basic broadband network connection and transmission services, or Internet access, should be treated no differently than unregulated and competitive “over the top” information services. So the legal distinction between content and conduit was erased. But network infrastructure and local connections are just as critical as ever.

FCC Chairman Powell, recognizing the importance of telecom connectivity principles, substituted an Internet consumer bill of rights or Policy Statement, that a court later ruled was unenforceable. Only actual laws and rules developed through appropriate public proceedings are enforceable.  That’s why the FCC went back to the drawing board and developed the 2010 open Internet rules, which were thrown out last January for lack of reliance on a strong Telecom Act foundation. In its current Open Internet proceeding, the FCC has the flexibility to apply only the most essential provisions of Title II to Internet access and need not involve itself in rate regulation or tariffing like it does with telephone service. Such “forbearance” is actually a standard feature of administrative law that telecom companies often seek and are granted.

Internet freedom and open Internet access must begin at home. Other countries will be taking note of whether the US Government allows our own big telecoms/cable to regulate consumer and small business access to the Internet.   And don’t forget that in some countries, the broadband access provider actually is an arm of the national government or controlled by it. Regardless, no public or private authority should control end user Internet access.

When the ITU Plenipotentiary conference concludes early next month, it will be time to turn our full attention back to FCC efforts at safeguarding open Internet access into the future for American citizens and businesses.

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