COALITION OF BROADBAND USERS AND INNOVATORS 

September 11, 2003

ACTION IS NEEDED TO PRESERVE INTERNET OPENNESS

Should the Internet remain open?  The cable industry says, “Maybe.  Let us decide.”  We think that is a dangerous policy for our broadband future.  Cable operators’ continued refusal to commit affirmatively to not interfering with the ability of consumers to access their choice of Internet content, applications, and services via any nonharmful devices demonstrates the need for a network neutrality safeguard.  

Cable operators will not commit to not impairing consumer access to the Internet in the future. At a House Telecommunications Subcommittee hearing in July, NCTA President and CEO Robert Sachs refused to make a commitment that cable operators would not impair consumer access to the Internet in the future and recognized that current industry practices might change.  “It’s a little hard to make a blanket representation for an industry that has undergone consolidation and change with numerous players, as to every company’s business practices. . . . I don't think that it's realistic for any association or company to come before you and say, for the future forever there will be no change whatsoever in our business plans . . . .”  

If cable operators are serious about their commitment to allow customers to go anywhere on the Internet at any time, then adoption of a targeted safeguard by the FCC would have no impact on their behavior.  Adoption of a network neutrality principle would benefit consumers and content and service providers by creating marketplace certainty, while imposing no burden on cable operators unless they already intend to discriminate or restrict consumers’ ability to navigate on the Internet.  If cable operators’ representations that they support unfettered consumer access to lawful Internet content are true and they do not intend to impair users’ ability to go anywhere, then such a safeguard would cost them nothing.  And if network operators do have plans to interfere with consumers’ ability to go anywhere, then the cost of a targeted regulation would be far outweighed by the benefits to consumers and the Internet industry.  Thus, adoption of a network neutrality principle is a no-lose proposition that advances the public interest.  

FCC Chairman Michael Powell recognizes the importance of consumers’ ability to go anywhere on the Internet.  At a hearing before the Senate Commerce Committee earlier this year, Chairman Powell explained that he was unconcerned about media concentration in the context of the Internet because, “When I sit down at the Internet, I can go anywhere I choose.”  That is the case today.  That should be the case tomorrow.  As Chairman Powell’s testimony attests, there are profound policy implications if the principle of network neutrality that has ensured the openness of the Internet is not carried forward into the broadband era.  

Adoption of a network neutrality principle is justified in the absence of specific evidence of market failure.  Historically, Congress and the FCC have not hesitated to step in to protect the interests of consumers by acting in anticipation of future bad behavior by entities in a position to act contrary to the public interest, even in the absence of specific evidence of current bad acts.  The Commission has, for example, adopted program access regulations and the Computer Inquiries regime in the expectation that vertically-integrated providers of key communications facilities have the incentive and ability to favor affiliated content and to hinder competition.   

Adoption of a network neutrality principle would not interfere with cable operators’ ability to manage bandwidth to ensure quality of service.  A network neutrality principle would permit nondiscriminatory practices by broadband network operators, such as managing the broadband network in a technically efficient manner, implementing reasonable measures to prevent unlawful conduct, or adopting a nondiscriminatory system of tiered pricing for consumers based on such consumers’ actual use of the broadband service.  

Adoption of a network neutrality principle would not interfere with cable operators’ ability to enter into private promotional arrangements with third parties.  A network neutrality principle would not apply to private arrangements that give some companies but not others a link on a network operator’s first page.  Network operators may give preferred placement to certain content by, for example, putting links to some websites and not others on its home page.  What is not acceptable is a network operator’s using preferred placement as a pretext for impairing access to other lawful Internet content—the consumer who types in the URL for krispykreme.com should not be redirected to dunkindonuts.com.  

The principle of network neutrality has been instrumental to the growth and development of the Internet in the narrowband world.  We think the Internet is functioning well under that regime.  But we see the broadband future as clouded if consumers have fewer choices of content and services in the broadband world than they have come to expect from narrowband.  For these reasons, it is critical that the FCC adopt narrow, targeted safeguards in its pending broadband proceedings.  We therefore urge you to join the Kind-Boucher letter to FCC Chairman Michael Powell urging the FCC to take action to protect consumers.

This page was last updated on 10/30/03.  
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