ISP’s and their clients should consider the existing leading concepts in terms of privacy and intermediate liability in light of the phenomena of cloud computing, said U.S. State Department Coordinator of International Communications and Information Policy Philip Verveer after a Media Institute speech. Verveer told us cloud computing presents many advantages with respect to more extensive and less expensive services. During his speech Verveer said occasions -- such as the thirtieth anniversary of OECD’s Guidelines and the fifteenth anniversary of EU’s Data Protection Directive -- are sufficient to make a point: the privacy-related implications of cloud computing have been recognized and beginning to be addressed. However, it’s desirable to find an appropriate balance between the values associated with privacy and the opportunities for increased economic efficiency in the cloud concept, Verveer told us: “The closer we can come to an understanding with respect to privacy, jurisdiction, and intermediary liability, the better off we will be, particularly if we take care not to diminish the efficient operation of cloud computing beyond whatever may be necessary to protect other values deemed to be of superseding importance.” Regarding Internet intermediaries and their social and economic role, Verveer said that to the extent that the Internet’s various intermediaries, transmission companies, Internet service providers and application vendors are subject to liability for content provided by third parties, there inevitably will be less diverse content available. “Some of that will be a function of the risks of consequential damages,” Verveer said. “This is a matter where the United States has something very useful to offer the world.” Section 230 of the Communications Act, was passed in 1996 as part of the Communications Decency Act, itself a part of the Telecommunications Act amendments,” he said. The provision, which was introduced as a floor amendment by Rep. Christopher Cox, R-Calif., and former Rep. Ron Wyden, D-Ore., has been integral to the development of the Internet as we know it today, Verveer said, and it provides “a federal immunity” to any cause of action that would make service providers liable for information originating with a third-party user of the service.
Section 230
The three appeals judges who heard FCC v. Comcast expressed skepticism that the commission had ancillary authority to find the company had violated net neutrality principles in blocking peer-to-peer file transfers (CD Aug 4/08 p1). Judges at the U.S. Court of Appeals for the District of Columbia Circuit pressed FCC General Counsel Austin Schlick Friday to cite a statute that gave the regulator direct authority over an ISP’s network management. Comcast’s lawyer was challenged to show how the company was harmed by the commission’s order against it, since no fine was imposed.
Yielding to complaints by consumer advocates, including Ohio’s Office of Consumers Counsel, members of the state Senate softened provisions in a telecom deregulation bill. But SB-162 continues to draw fire from Consumers Counsel Janine Migden-Ostrander and others, who say they'll keep up the pressure on the Senate. The opponents also plan to lean harder on the Ohio House, which has a version of the measure, for changes, they said. The state’s telcos defend the measure as reflecting a trend by states to deregulate phone services.
The FCC should begin a rulemaking that would force Internet service providers to report in detail on ways they monitor or interfere with “any level of communication by end users to access or share lawful content and applications on the Internet,” Free Press said in a filing. It came about two months after the FCC released an order sanctioning Comcast for the way it manages its network (CD Aug 21 p2). “Any service provider that wants to manipulate the connection between Internet users and Internet content has an obligation to disclose what it’s doing,” Policy Director Ben Scott said in a news release.
By 3-2, FCC commissioners found that Comcast discriminated against peer-to-peer applications by interfering with them but not other broadband traffic. FCC Chairman Kevin Martin’s Republican colleagues dissented, as expected (CD Aug 1 p1). Martin and Commissioner Jonathan Adelstein criticized Comcast for not being candid with consumers and the FCC about its network management. They and Commissioner Michael Copps called the practices discriminatory and in violation of 2005 FCC net neutrality principles. Commissioner Robert McDowell criticized consideration of the order because major changes were shared with other commissioners but not him the evening of the vote. He disagreed with acting against Comcast after it had agreed not to discriminate and for enforcing principles that aren’t rules.
Comcast and Free Press continue feuding at the FCC (CD July 21 p11) over whether the agency has authority to find that the cable operator violated commission net neutrality principles, as Free Press claimed in a filing on Comcast’s network management. In a Monday letter to the FCC Comcast said it meant its communique to “re-emphasize the fundamental legal flaw in Free Press’ demand” that the FCC act: “There is simply no law, and no lawful basis to promulgate any new legal standard to be enforced.” Section 230(b) of the Communications Act and 706(a) of the Telecom Act, both of which Free Press “now focuses” on, “confer no rights or enforceable duties on subscribers or broadband providers, and do not expand the agency’s statutory authority in any way,” said Comcast. “The absence of any potentially applicable law prevents the Commission from taking any action on the Complaint.” If it did act, the FCC could violate the Administrative Procedure Act and the due process clause of the Constitution, Comcast suggested. Friday, officials from Free Press and other network neutrality proponents met with Commissioner Jonathan Adelstein to discuss “the strongest jurisdictional bases for the Commission to issue a show-cause Order,” said an ex parte. “We also discussed several of the meritless arguments that Comcast and its allies have raised in its attempt to delay the Commission’s action.” Another letter from Comcast to the FCC said the cable operator’s network management, similar to that of other ISPs in the U.S. and other countries, isn’t discriminatory. Comcast broadband customers “can and do access any content, run any application, and use any service that they wish,” said the cable company.
If FCC Chairman Kevin Martin and his colleagues are looking for legal arguments to conclude that Comcast’s slowing of peer-to-peer file transfers broke agency rules, a filing by Free Press may help, according even to some cable attorneys who disagree with the group’s stance. Late Thursday, Free Press made a 112-page filing with the commission in which it laid out seven provisions of the 1996 Telecom Act it said gave the FCC authority to prevent Internet service providers from engaging in “unreasonable discrimination” against Web content. Title 1 of the Act gives the commission the right to ensure networks are operated “'in a neutral manner,'” it said.
Sponsors of legislation designed to bring more universal service fund (USF) dollars to western states said Wed. they would seek to attach the bills as riders to other legislation in an effort to see it passed this year. Sen. Smith (R-Ore.) (S-1380) and Rep. Terry (R-Neb.) (HR-1582) said while time was running out this congressional session, their bills enjoyed considerable support and could find passage as a rider to another legislative vehicle. Terry said House Commerce Committee Chmn. Barton (R-Tex.) was now a co-sponsor of the bill and Smith said Senate Commerce Committee Chmn. McCain (R-Ariz.), an original co-sponsor, was “pushing aggressively” to have the measure moved through the Senate. The bills are designed to redistribute the so-called “non- rural” section of USF, about $230 million yearly, to more states. The non-rural fund goes to ILECs (including some non-RBOC ILECs) that serve rural customers. Currently, the lion’s share of the funding goes to Miss., which receives about $120 million, and the rest is split among 7 other states, leaving 42 states ineligible for funding. Smith, Terry and other supporters of the bills have called the funding formula “unfair” and the 10th U.S. Appeals Court, Denver, remanded the funding scheme to the FCC. Both Qwest (which has made the most vigorous push for the bill) and SBC have challenged the FCC’s recently revised scheme, which doesn’t significantly change the distribution pattern. Smith and Terry were optimistic about the chances that the bill could be added to another legislative vehicle and an industry source said the lawmakers have reached out to key members on appropriations and other committees to help move the bill forward. Things have improved for Terry’s bill since Rep. Tauzin (R-La.) vacated his chmn. position. Tauzin, as have some others, said the issue should be dealt with in comprehensive USF reform. “This bill should be adopted today,” Terry said. USF reform, which will be a hot topic in Congress next session, will be a long process, Terry said, but there’s support for this legislation now. But Terry alluded to one “Mississippi representative” who didn’t understand the inequities of the issue. Terry was likely referring to Rep. Pickering (R-Miss.), the vice chmn. of the Commerce Committee. The House bill has 79 co-sponsors, while the Senate version has 31, including the recent addition of Senate Minority Whip Reid (D-Nev.). Neither bill has been marked up or even had a hearing, though the measures have been addressed in other USF-related hearings. Smith said it would have been preferable to have the bill marked up, but said in the Senate, “it doesn’t seem to matter.” He said there were at least 2 appropriations bills that it could be attached to and that the “political season” could produce other bills suitable for attachment.