NCTA’s Executive Vice President, James Assey, will be participating tonight in an Oxford-style debate on net neutrality, presented by Tech Debate as part of Web 2.0 Expo New York.

The participants will debate the motion “A network neutrality law is necessary.“ Arguing for the motion will be Professor Tim Wu, venture capitalist Brad Burnham and Professor Nicholas Economides. Presenting the case against the motion will be James Assey, Robert Quinn (AT&T’s Senior Vice President of Federal Regulatory) and Professor Christopher Yoo.

The event will be streamed live this evening at 8:00 p.m. A podcast will be available afterwards at Tech Debate’s website.

James Assey did a bit of debating on net neutrality and other telecom topics at the Personal Democracy Forum back in July. You can read a write-up of that conversation or watch a video of the proceedings.

Today, NCTA President & CEO Kyle McSlarrow gave a speech at the Media Institute, the nonprofit research foundation specializing in communications policy issues. Fittingly, since the Institute is very focused on issues of freedom of speech, the address focused on “net neutrality” and the First Amendment. You can read the speech here, but I thought it would be helpful to provide some background information.

There are plenty of freedom-loving Americans who love the Constitution. Some of them even carry around copies of that document. And yet, even among these hardcore fans, there is often a misunderstanding of the First Amendment to the U.S. Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are many circumstances under which individuals may claim a violation of their First Amendment rights. Someone may lose employment after saying something in the press. A person may not be allowed to appear on a television broadcast. A student might be suspended for something written in the newspaper of a private college. These might be unjust situations, but they are not governed by the First Amendment, which says that the government may not abridge freedom of speech.  What the First Amendment guarantees is that the government doesn’t get to decide who gets to speak and who doesn’t.

In his speech, Kyle McSlarrow says:

…urging the government to impose rules that supposedly promote First Amendment values is too often used to justify regulations that instead threaten First Amendment rights.   By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government.  Making these arguments is, ironically, almost proof that First Amendment rights are being implicated.

It’s also important to note that there are many who seem to think that the cable industry is a special case. They argue that cable’s infrastructure was built with government funding and is therefore a public utility and subject to common carrier regulation. All of these assertions are factually incorrect. To quote a previous post:

To be sure, our video services are subject to government regulation – at the federal, state and local levels – but we aren’t like telephone companies (which built their systems with captive ratepayers and a government-guaranteed rate of return) or even radio and television broadcasters (who were given public airwaves for free, but in return had to adhere to certain “public interest” requirements).  Our industry had no government-guaranteed return or government-granted public airwaves – to the extent we used any public resources, we paid for our rights-of-way with local franchise fees. Indeed, the cable industry built analog networks, our new digital networks, our cable modem and digital phone services with private risk capital with no assured return.

Some might argue that, because the FCC has previously regulated speech on the broadcast networks, such an approach would be appropriate in the Internet Age. But note what Kyle said in his address:

…in this case, the FCC is not engaged in the allocation of the public airwaves.  The bandwidth we’re talking about is capacity on private transmission facilities constructed by ISPs.  Imposing regulations that prevent providers from using “too much” capacity for speech-related services not even associated with Internet access should cause all sorts of First Amendment and Fifth Amendment Takings alarm bells to go off.

Finally, it’s not just the cable operators that would be affected. The other concern about the government deciding to involve itself in these debates – which should properly been seen as technology discussions – is that we don’t know what future applications might be developed or how they might need the network to be structured in order to work most effectively.

To quote from Kyle’s speech:

Not all content providers may need the same speed, prioritization of data and quality of service as, say, providers of high-definition video, or maybe 3D video or who-knows-what-else may be invented by application providers.  But ISPs can’t prioritize all content, due to the physical limitations of their systems.  And it may be entirely too costly (as well as unnecessary and inefficient) to offer the same quality of service that a video game service requires to every single content provider.  And so the effect of such a rule would be simply to prevent the offering of the services consumers might want that require such special treatment.

Or to quote one of my earlier blog posts:

If you want a dumb pipe, with every bit treated the same, that will significantly affect telemedicine and other advanced services which may require priority treatment. If creating some method of optimized delivery was such a terrible thing, what does this say about services like Akamai, that help make content distribution more efficient, benefiting both consumers and content producers?

Really, all we’re saying here is that these are very complicated issues and we hope that the government treads lightly as it contemplates taking action.

The column below appeared today in The USA Today, as an opposing view to a USA Today editorial.

Opposing view on ‘Net neutrality’: Providers back Web freedom

By Kyle McSlarrow

On Tuesday, a federal court struck down a Federal Communications Commission order enforcing a rule that the agency hadn’t ever actually adopted. The court’s decision does not call into question an Internet policy adopted unanimously by the FCC in 2005 — endorsed by all broadband providers — promoting a free and open Internet. Thus, the decision has no effect on the Internet experience that consumers enjoy, and it doesn’t alter the government’s existing authorities to protect consumers or to police anti-competitive conduct.

Today, 65% of American households subscribe to services provided by a number of competing broadband companies to access a growing number of exciting applications that have changed the way we all communicate, conduct business, gather news and information and consume entertainment.

But there are still gaps. Not every community has broadband, and not every household that has access subscribes. Here, too, nothing in this week’s court decision affects our collective ability to implement the vision of a connected nation.

Broadband providers agree that consumers should have the freedom to navigate the Internet and access any legal content or application of their choice. That isn’t at issue. But fears of what broadband providers “could” do have prompted the usual and predictable calls for more — and, in some instances, incredibly far-reaching — government regulation of a marketplace that has been an American success story.

Why? In precisely two instances — and one of them is debatable — out of trillions of transactions over the past decade, has anyone even been able to point to a specific problem. Contrast that with the overwhelming evidence of hundreds of billions of investment to build and expand networks and the incredible array of new applications and sites flourishing because of a bipartisan policy of regulatory restraint.

We fully intend to work with the FCC and other policymakers to preserve the open Internet that is a reality today. But it is a massive overreaction to suggest that we should impose decades-old regulatory regimes designed for the days of Ma Bell and a government-sanctioned monopoly on the Internet.

Yesterday, FCC Chairman Genachowski announced his intent to launch a proceeding exploring a new regulatory framework for broadband services.  Since then, there’s been lots of commentary from industry (including our own statement here), Wall Street analysts, and pro-regulation advocates. Amidst all the storm and fury, I want to highlight an important passage in Chairman Genachowski’s statement:

“The issues presented by the Comcast decision are a test of whether Washington can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement.”

At NCTA, we couldn’t agree more and pledge again that our industry will work constructively with the FCC, Congress and all policymakers to create an appropriate framework that preserves an open Internet and achieves the goals of the National Broadband Plan.

But as this important dialogue moves forward, it’s critical that we at least have a common understanding of some basic facts – perhaps the most basic being a common understanding of what the Internet is.

Which brings me to the odd “rebuttal” that Free Press issued today to comments by NCTA and others on the Chairman’s “third way” proposal. It includes these phrases:

“The ‘Internet’ is not the wires that deliver the content and applications, but the content itself.”

“We trust that the NCTA will be reassured by the FCC’s repeated assertions that they have absolutely no plans to regulate the Internet.  Being the expert agency for communications, the FCC recognizes that broadband communications services are not ‘the Internet’, contrary to NCTA’s deliberately misleading statements.”

Perhaps Free Press should take a closer look at the Communications Act – specifically section 230(f)(1), which was added by the 1996 Telecom Act:

“The term “Internet” means the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

Nowhere in Congress’ definition does it describe the “Internet” as being the “content” provided over the networks rather than the networks themselves.  The Commission itself cited Congress’ network-based definition of the Internet in adopting its 2005 Policy Statement on Broadband Internet Access.

Congress used a similar network-based definition in the Broadband Data Improvement Act in 2008:

INTERNET.—The term ‘‘Internet’’ means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor successor protocols to such protocol, to communicate information of all kinds by wire or radio.

Likewise, the US Supreme Court has described the Internet as a “network of interconnected networks” (National Cable & Telecommunications Ass’n v. Brand X Internet Services) and as a “worldwide mesh or matrix of hundreds of thousands of networks, owned and operated by hundreds of thousands of people”(Reno v. ACLU).

Free Press may wish that the Internet was something else, but that does not make it true.  Let there be no doubt: When you regulate broadband networks, you are regulating the Internet.

[Editor's Note: Rick Chessen is Senior Vice President, Law & Regulatory Policy for NCTA. In addition, one sentence above was edited for clarity]

If there is any one common theme that has arisen from the years-long policy debate surrounding network neutrality, reasonable network management and preserving an open Internet experience – it’s that there is no simple solution and the entire Internet ecosystem must be engaged with a common purpose to continue providing consumers with a great Internet experience.

That is why today’s announcement of the formation of a Broadband Internet Technical Advisory Group (BITAG) is such encouraging news.  The BITAG starts off with some of the leading broadband providers, high-tech companies and Internet content providers, and will provide an inter-industry forum to allow technical and engineering experts to discuss technical issues and develop best practices related to matters that affect the consumer broadband experience.

According to today’s announcement, the BITAG’s mission is to:

Bring together engineers and other similar technical experts to develop consensus on broadband network management practices or other related technical issues that can affect users’ Internet experience, including the impact to and from applications, content and devices that utilize the Internet. Participants agreed that the TAG’s mission could also include: (1) educating policymakers on such technical issues; (2) attempting to address specific technical matters in an effort to minimize related policy disputes; and (3) serving as a sounding board for new ideas and network management practices.

An impressive list of companies that touch all points of the consumer broadband experience have signed on to the initial BITAG effort, including AT&T Inc., Cisco Systems, Inc., Comcast Corporation, DISH Network, L.L.C., EchoStar Corporation, Google Inc., Intel Corporation, Level 3 Communications, LLC, Microsoft, Time Warner Cable, and Verizon.

Importantly, the BITAG will be managed by an independent and expert facilitator, Adjunct Professor Dale Hatfield of the University of Colorado at Boulder, a former FCC Chief Technologist who is executive director of the highly-respected Silicon Flatirons Center.

Formation of BITAG was applauded by The Internet Society, one of the world’s foremost non-profit organizations which provides leadership in Internet related standards, education, and policy:

“This joint effort by industry leaders provides an exciting opportunity to address key operational challenges facing the Internet user experience,” said Leslie Daigle, Chief Internet Technical Officer of the Internet Society.  “The Internet Society believes this activity is an important contribution to the ongoing global, open technical dialog and looks forward to seeing its output appropriately integrated with the work of existing Internet standards activities.”

(Also see NCTA’s statement on our website.)

As today’s BITAG announcement indicates, this is really the beginning of a process to attract interest and participation by others and to organize the BITAG to meet the mission statement to which these companies have committed.  We look forward to learning more about the BITAG and to supporting its efforts.

The First Amendment is generally understood as one of the most important of our Constitutional rights, and easily understood as a right secured to individuals.  But most people don’t understand how the First Amendment has played a key role in determining telecommunications policy; and often don’t think of it as being applicable when it comes to individuals working together through institutions or organizations like a corporation.

However, across a broad range of telecom policy issues – from net neutrality, to commercial speech, to merger & acquisition activity, and others – you’ll find advocates for all sides brandishing First Amendment arguments in support of their cause.

For instance, cable operators and programmers, along with newspapers, broadcasters and other media, have consistently – and mostly successfully – maintained that the First Amendment protects them from government regulation that interferes with their ability to provide content to consumers.

For the cable industry specifically, it is important to recall that cable systems do not use the public airwaves, like television broadcasters, and are not a public utility, like telephone companies.  Instead, an incredible distribution infrastructure was created with private risk capital that extends from traditional video to broadband, and it now offers a platform for myriad voices, managed by those who invested the money to create it.

In our view, this is a 21st century version of the Jeffersonian ideal of a free, diverse, and robust media.

Some policymakers and policy advocates argue instead that the First Amendment primarily protects the interests of citizens and consumers and authorizes regulation to guarantee speakers’ and programmers’ access to the media and to prevent the media from restricting such access.

On its face, the language of the First Amendment seems to support the media’s side of this argument.  It says that “Congress shall make no law … abridging the freedom of speech, or of the press,” and neither authorizes nor protects the enactment of laws or regulations embodying a “right of access” to the media.

But this doesn’t mean that the First Amendment promotes the interests of the media over the interests of consumers and the public.  As the Supreme Court has repeatedly made clear, the First Amendment embodies a shared interest of citizens and the media in preventing the government from interfering with the marketplace of speech.

The Court has explained, for example, that a “Government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’” [Miami Herald Pub. Co. v. Tornillo]   And it has soundly rejected the view…

…that every potential speaker is ‘the best judge’ of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary. For better or worse, editing is what editors are for; and editing is selection and choice of material. [Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee]

In coming days in this space, I will argue in this series that this legacy of the First Amendment has laid the foundation for the modern cable industry, and that understanding why and why it is important is critical to getting some of today’s issues right.  I hope you’ll join in the discussion.

In the previous segment of this series, I briefly touched on how government officials may attempt to weigh in on questions of what content the media, and cable systems, can/cannot or should/should not carry – and the harm to the public interest caused by such activity.  This same principle transcends traditional technology and carries over into today’s Internet-based communications world.

For instance, network neutrality, as defined by its proponents, may be viewed as “content neutral,” insofar as it is supposedly meant to guarantee all Internet content and application providers nondiscriminatory access to broadband Internet customers.  But, in fact, the purpose of the proposed restrictions is hardly neutral with respect to content and speakers.

A flat nondiscrimination rule actually goes well beyond a traditional common carriage requirement, and would force Internet service providers to make their transmission services available to persons wishing to use them on nondiscriminatory rates, terms and conditions.  Under such a formulation, Internet service providers would not be allowed to charge content and application providers at all – not for transport, not for enhancements or services in addition to transport, and not for guaranteed quality of service.  Nondiscrimination under this rule would mean one-size-fits-all for all application providers, at a fixed, nondiscriminatory price of zero.  All regardless of whether consumers actually might prefer different choices and models of access and delivery.

At least some proponents have been clear about the purpose of such a restriction.  Among their stated fears:  If Internet Service Providers (ISPs) are allowed to provide enhancements and quality of service guarantees to some content and application providers, other content and application providers that were unable or unwilling to pay for such enhancements would be less likely to be viewed on the Internet.  It is as if cable program networks without the resources to acquire or produce high-definition programming sought to prevent cable operators from providing other networks with the additional channel capacity required for HD transmissions so that the standard-definition programming would not lose viewership.

Other proponents of the nondiscrimination model are less transparent about their purpose.  While “net neutrality” rules are ostensibly aimed at preventing ISPs from interfering with the equal ability of all content and application providers to reach consumers, some proponents seek to use such rules to preserve their ability to achieve – or help others to achieve – enhanced and expedited access to consumers.

Google, for example, historically has been a vigorous proponent of net neutrality, and it’s easy to see why.  Google has its own ubiquitous facilities for storing its content at sites near cable facilities across the nation.  Therefore, it can already reach broadband customers faster than other content and application providers.  Prohibiting cable operators and telephone companies from offering enhanced or guaranteed delivery to other content and application providers would not preserve equality.  To the contrary, it would preserve the inequality and head start that Google already enjoys – promoting this very large speaker over others.  Don’t get me wrong:  it sounds like a good business plan; I just don’t think it is the business of government.

Forcing equal treatment in order to protect certain content providers is not the same thing as “content neutral.”  The First Amendment ensures that the media can maximize the value of their services to customers without government restrictions designed to protect and promote particular speakers.  The overriding purpose of the First Amendment is not to make the liberty interests of the media superior to anyone else’s right to speak.  It is to ensure that the speech that is disseminated by the media – as well as the speech of individuals and other entities – is not shaped, forced or suppressed by the force of law as wielded by legislators and regulators.

Does this mean the government is powerless to protect the public from harms posed by particular actors on the Internet?  No.  We’ll discuss that in the next and final segment of our series.

In the previous segment, we looked at how First Amendment principles manifest themselves in how the Internet should or shouldn’t be regulated.  And I concluded that media – including ISPs – should be able to maximize the value of their services without rules from the government that serve to protect and promote certain speakers.  But that doesn’t preclude government intervention to protect the public from harms that may be posed by any actor on the Internet.

Many of the threats and potential harms identified by proponents of net neutrality, for example, are rooted in interests and concerns that have little to do with affecting the protected marketplace of speech.  One example is the possibility that cable operators and telephone companies will seek to protect their own affiliated video and telephone services by degrading or otherwise discriminating against competing Internet-based video and telephone services.

But the government has tools – including, specifically, antitrust laws – that are designed to prevent unfair conduct that threatens competition in a way that harms consumers.  Such laws, to the extent that their purpose isn’t related to affecting speech, aren’t precluded by the First Amendment, whether applied to ISPs or content and application providers.

Laws aimed at protecting privacy or preventing deceptive marketing practices – by ISPs or other Internet entities – also could be narrowly crafted in ways that do not impermissibly target or seek to affect protected speech.

But net neutrality rules, as currently proposed by some advocates, go beyond these purposes and are intended to directly affect the speech that is available on the Internet.

What do I mean by this?  An Internet experience often consists of a relationship between the consumer, an ISP and a company offering a service or application. That relationship might be you, Apple/AT&T and a company that built a useful iPhone app. It might be you, Comcast/FiOS and Google.  If the application provider and the service provider could work together to give you a new service or improve an existing service through QoS (the traffic engineering effort known as “quality of service”), then you might be very happy with the results.

Net neutrality proponents typically tend to forget that we can’t know what new applications or services might develop in five or ten years. They want to write rules governing what we have now, while potentially preventing what may come. They argue against new services that might be attractive to some, while ensuring they will be available to no one.

And while these net neutrality proponents purport to be acting on behalf of consumers, they seem more interested in determining who gets to speak on the Internet and in dictating how they may or may not use the Internet to deliver their content to consumers than in the preferences and demands of consumers themselves.

As I wrote earlier, stripping cable operators of the ability to tailor their video programming services and packages to maximize value to consumers by turning them into common carriers would have thwarted consumers’ interests.  Similarly, imposing common carrier obligations on ISPs would suppress the development of Internet applications and services that best serve consumers.

The First Amendment protects consumers’ interests by preventing the Government from imposing its will on the marketplace of speech.  Notwithstanding the protestations of “public interest” groups and some government regulators, the First Amendment rights and interests of consumers, the media, and ISPs are, with respect to these matters, aligned.

[As this series on the First Amendment comes to an end, this is a good time to note that NCTA proudly joins The Media Institute and other organizations in commemorating National Freedom of Speech Week during October 18-24.]

The blogosphere has been buzzing since last night, with all manner of “experts” offering opinions about the dispute between Comcast and Level 3 over their commercial arrangement for the exchange of Internet traffic.  While I am a bit hesitant to add to the ruckus, I think it is important to refute the misguided notion that this business dispute is really a “net neutrality” problem that can and should be solved by federal regulation.

We all have heard the Internet described as a “network of networks” but we generally give little thought to the remarkable logistics involved.  For the Internet to operate, thousands of networks – small and large, wireless and wireline, urban and rural, domestic and global – must establish arrangements to govern how they interconnect and exchange traffic.  While there are different types of providers (backbone, content delivery network (CDN), etc.) and different types of arrangements (settlement-free peering, paid transit) – see this White Paper for a good explanation – the key point is that these myriad of arrangements have developed over time, in the marketplace, without any legislative or regulatory intervention.  That the Internet works at all is amazing; that it works 24/7 to bring consumers content from around the world at lightning speed borders on the miraculous.

The FCC consistently has taken a “hands off” approach to these arrangements. It has not imposed any form of regulation on these arrangements, nor has it intervened in the periodic disputes that occur between backbone providers, like Level 3’s dispute with Cogent in 2005 – in which Level 3 insisted that Cogent pay a fee for transmitting content on Level 3’s network rather than peering on a settlement-free basis. Moreover, while the FCC has been considering net neutrality regulations for some time, it has never suggested that it was considering any change in the regulatory treatment of backbone and CDN providers. (Indeed, even the most fervent net neutrality advocates, like Free Press, have recognized the legitimacy of these commercial arrangements; see note 8 on pg. 17 in these comments).

So is there anything unusual about the dispute between Comcast and Level 3 that should cause the Commission to reassess its hands off approach to these types of arrangements?  No.  While some of the initial commentary, reacting solely to Level 3’s press statement, reflected a knee-jerk reaction that any dispute involving the Internet implicates net neutrality; as the day wore on, cooler heads seem to be prevailing, with most observers, including some net neutrality advocates, recognizing that this was nothing more than one party to a commercial negotiation trying to use the regulatory process to gain negotiating leverage (Also see this article from Multichannel News).

Nor can Level 3 credibly claim to be surprised by Comcast’s approach.  Comcast’s policy on settlement-free peering – including its expectation that any peering partner “maintain a traffic scale between its network and Comcast that enables a general balance of inbound versus outbound traffic” – is posted right on its website. When Level 3 approached Comcast and asked for a significant change in the parties’ physical interconnection arrangement, it should have fully expected that Comcast would seek a corresponding change in the parties’ business arrangement, consistent with the general practice across the industry.

Under the circumstances, Level 3’s plea for government intervention in this commercial negotiation is entirely unwarranted.

FCC Commissioner Mignon Clyburn and FTC Chairman Jon Leibowitz at The Cable Show 2011 Public Policy Lunch

FTC Commissioner Jon Leibowitz and FCC Commissioner Mignon Clyburn sat down at the Public Policy lunch with NCTA’s James Assey to discuss the regulatory challenges facing cable and the challenge of getting America connected.

Clyburn stated that her passion for getting people online, and connecting them with services that can enhance their personal value drives her policy decisions.

Assey asked Leibowitz about the possibility of giving users who consume less bandwidth a lower price for packages and charging heavy users more. Leibowitz said he was surprised that tiered packages weren’t more widely used since almost every other product is paid on a volume basis. He went on to say that the key is disclosure to consumers of what they can expect from those tiers.

As discussion turned to online ad targeting and privacy, Leibowitz noted that the FTC report suggested that app designers be built with privacy protections, transparency, and choice.

Leibowitz suggested that children’s privacy may warrant treatment of geolocation data as personally identifiable data and require regulation.

Turning to net neutrality, an audience question about publication of the net neutrality order led FCC Counsel Schlick to chime in from the audience to say the Paperwork Reduction Act was to blame, but did not offer a clear answer.

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Michael Turk is a Partner in CRAFT | Media / Digital, a full-spectrum communications agency.  Learn more about CRAFT at www.craftdc.com.