Copyright Law

The Federal Communications Commission comes to Stanford this Thursday to hear from two panels of experts and members of the public on issues related to broadband network management practices.

Background

The hearing is being held in response to three petitions that question whether those who control communication infrastructures should be allowed to control access to content, applications, or technologies.

The first two petitions specifically target actions of Comcast, Inc. which has blocked consumer access in the past. On November 1, 2007, Free Press, a media reform organization, in conjunction with other media advocacy groups as well as law professors from Harvard and Stanford, asked the FCC to equate any intentional action by an internet service provider to ?degrade? an internet application as a violation of the FCC?s Internet Policy Statement.

Two weeks later, Vuze, Inc., an online entertainment platform that allows users to download high resolution video content using P2P software, complained about Comcast?s clandestine efforts to block access to Vuze content. In their petition, they also asked the FCC to clarify what the Commission means when it says that broadband providers must provide ?reasonable network management??ambiguous language, again, found in the policy statement. 

In December, Public Knowledge and other advocates filed a third petition. They asked the FCC to address the issue of network discrimination?this time in relation to wireless phone networks. (Verizon, Inc. refused to connect SMS or text messages sent by a pro-choice organization to Verizon customers. These text messages are delivered by what is known as a ?short code? or a five or six digit number that acts just like a phone number. This number must rent access to an existing wireless network.) At issue is whether wireless carriers like Verizon can selectively exclude those who lease their infrastructures.

In view of these three petitions and the subsequent rule making proceedings they initiated, the FCC has decided to hold two en banc hearings?one at Harvard Law School last February?and one this Thursday at Stanford Law School. The purpose of the hearings is to understand more about the problem of network discrimination, other network management issues, and how it should move forward.

Expectations

Already, there seems to be a buzz about the Stanford hearing. Local media and local luminaries have discussed the event. Local organizers are getting the word out and hosting workshops to encourage community members involved.

Meanwhile, at the national level, network neutrality advocates have ramped up their efforts to mobilize supporters. The visibility of these advocates has provoked the ire of some, while non-plussing others.

Whether the FCC can foster a substantive debate that leads to a healthy, democratic digital future may be another issue altogether. The first hearing at the Harvard appeared to be nothing more than a sham. And, even if a broader range of stakeholders finds a seat in the room or a place on the dais, participation is certainly no guarantee of influence. As the six hearings from the FCC?s recent high-profile media ownership debate demonstrated, an outraged public can turn out, testify for hours on end, and do very little to persuade the Commission to vote in its favor.

Nevertheless, the hearing at Stanford may very well provide an opportunity to (finally) jumpstart a national dialogue on the future of the internet. As Susan Crawford writes, the future of the internet requires engagement with bigger questions of statutory overhaul, not just a declaratory ruling or refinement of the FCC?s Internet Policy Statement. With the sparring between pro- and anti-network neutrality advocates and the bubbling attentiveness to broadband issues at the local level, it?s possible that this debate has already left the confines of arcane administrative procedure and is moving into the wider public sphere.

For the sake of democracy, let?s hope so.

Details of the FCC Hearing on Broadband Network Management Practices can be found here.