CAN WE REGULATE THE INTERNET AND BROADBAND? DO WE WANT TO?

WASHINGTON -- The following information was released by the American Bar Association:

American Bar Association News Service

By Patricia Gaul

Today's hearing in the House Energy and Commerce Communications and Technology Subcommittee addressed the December 2010 vote by the Federal Communications Commission to adopt net neutrality rules. At issue: Should broadband be regulated, and if so, how? That was also the topic of debate during an American Bar Association Section of Public Utility, Communications and Transportation Law meeting held earlier this week.

Net neutrality falls outside of the realm of telecommunications, said Federal Communications Commission Commissioner Meredith Attwell Baker. Broadband is a new service that she thought does not fit cleanly within current regulatory framework. "I don't believe we [the FCC] have direct authority" over the Internet or broadband, she said.

What happens when a new service or technology arises? Should an agency naturally follow in regulating it? No, said Baker, it is up to Congress. "We stepped in, even though we cited no emergency in doing so." In a statement issued at the time of the FCC vote, Baker said, "The majority does all of this without any apparent appreciation of the regulatory costs and distortive effect of government micromanagement of broadband networks."

The panel was one of several to look at competition analysis in regulated industries. In order to perform a viable analysis, said Baker, one needs a starting point and an end point. Revisiting the issue of broadband in another 12 months will give a completely different set of questions, she said. Among the issues she cited: "What is the speed of broadband?" "As the technology continues to evolve, will consumers want mobility or speed?" The number of providers of broadband that consumers have available to them is contingent on how fast broadband is considered to be.

Robert Quinn Jr., senior vice president of federal regulation at ATandT, suggested that in order to get the needed investment to reach what he called "broadband nirvana," "we're going to need private resources," alluding to the charges of regulatory costs and government intervention.

Quinn also posed a provocative question: "What are our national goals with respect to competition policy?"

"We need to define what we mean by competition," said Harold Feld, director at Public Knowledge, an organization that advocates digital rights management. Feld asked whether there are technologies or utilities that are so critical to our infrastructure that there is a greater concern than just the prevention of monopoly.

Theodore A. Livingston, chair, Section Communications, Cable and Internet Committee at Mayer Brown LLP, Chicago, moderated the panel, "Competition Analysis and the Net Neutrality Debate."