Martin’s Straw House of Network Neutrality

After listening to Chairman Martin’s testimony [PDF / webcast] to the Senate Commerce Committee today, along much of his Q&A with members of the committee, I can’t help but think that Martin is really walking a tightrope. On the one hand, he asserts quite confidently that the Commission has the legal right to enforce its Internet Policy Statement [PDF], while acknowledging that Comcast and other ISPs dispute that ability. On the other hand, he also refuses to recognize the rather obvious utility of Congress enshrining these principles as law so that the FCC’s ability to protect internet freedom is no longer so easily subject to question.

The problem with the Commission’s Internet Policy Statement is that it is, fundamentally, just a statement. It represents the Commission’s interpretation of what it is supposed to do, but does not necessarily represent actual regulation or law. Per the statement itself, the FCC says:

In this Policy Statement, the Commission offers guidance and insight into its approach to the
Internet and broadband that is consistent with these Congressional directives.

Not to put too fine a point on it, but “guidance and insight” do not law nor regulation make.

And so it is as if Martin insists on building a straw house of network neutrality, even as prominent congresspeople offer to give him bricks. Of course, I doubt many (if any) congresspeople will be deterred from supporting Net Neutrality legislation simply because Martin refuses to ask for it. But it provides good cover for those who want to duck under it.

It would be one thing if Martin were ignoring Comcast’s blocking, or defending Comcast’s “network management” practices. Instead, he expresses forthright criticism of Comcast, especially the fact that it hid the fact of its practice. In fact, especially listening to today’s testimony, it appears that for Martin the hiding is almost the greater sin than the blocking itself.

That sounds like Martin acknowledging market failure–where consumers don’t have the proper information to make informed broadband choices–but yet he remains still faithful in so-called market solutions in lieu of actual law or regulation with teeth.

But honestly, I still can’t quite figure out where he’s coming from. He’s definitely sounds more net neutrality friendly than ever before — and likely more friendly than either the big ISPs or congressional Republicans would like. But he won’t cross that line and make any guarantees. Remember, this is the same chairman who oversaw the elimination of common carriage requirements on the Internet, sparking the whole need for network neutrality law and regulation in the first place. Is he truly acting on principle or is he just avoiding a strong position, biding his time until the election when he might have the opportunity to bail and get a cushy industry job?


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