Feld: Why COPE's net neutrality provisions stink

Harold Feld explains why COPE is next-to-worthless when it comes to enforcing net neutrality:

COPE contains a “network neutrality” provision that takes the FCC's existing “four principles” (“consumers” (i.e., us) have freedom to access legal content, run legal applications, attach any legal device to the network that won't harm the network, and are generally entitled to competition) and makes them law. So far so good. But COPE then goes on to strip the FCC of any ability to protect these freedoms by rules. Rather, COPE limits the FCC to adjudicating any claims of violation of the principles. I think COPE's approach sucks for two reasons. First, prophylactic rules have worked for 30 years to prevent network operators from building all kinds of crap into their networks for the purpose of messing with content. The occasional attempt by cable or telco operators to block websites or rival services have been easy to address because the existing Computer Proceeding rules imposing network neutrality made these efforts stick out like sore thumbs. Shifting from a clear rule to a system that encourages network providers to push the limits until someone catches them, goes through the expense of an adjudication, and finally wins, seems to me an invitation to network operators to be as abusive as possible until they get pulled back. By that time, of course, the damage is done and what was once poo-pooed by opponents of regulation as “scare tactics” and “unsupported speculation” has become the new status quo. After all, why should the internet be any different from any other communications medium? Second, anyone familiar with the FCC would laugh themselves silly over the notion that the FCC works efficiently by adjudication. To take a few examples, Senator McCain filed a complaint under the “sponsorship identification” rules relating to attack ads against him in the 2000 Republican Primary. The FCC has yet to rule on the complaint. Hopefully, they will get to it by 2008. The Commission also has pending before it a complaint filed in 2001 alleging that, contrary to the terms of the AOL-Time Warner Merger conditions, Time Warner cable has not negotiated in good faith to provide access to competing broadand providers. The Commission has before it an “emergency” complaint from the Mid-Atlantic Sports Network, filed at the beginning of last year's baseball season, that Comcast has illegally demanded a share of ownership rights in exchange for carriage of Nationals games. A second baseball season has now started, with the FCC staff still sitting in the complaint. As you can imagine, this track record hardly inspires confidence that the FCC will protect my “four freedoms” as COPE supporters maintain.

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