[Congressional Record (Bound Edition), Volume 155 (2009), Part 18]
[Extensions of Remarks]
[Page 24889]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            FCC'S HEAVY HAND

                                 ______
                                 

                            HON. GENE GREEN

                                of texas

                    in the house of representatives

                      Wednesday, October 14, 2009

  Mr. GENE GREEN of Texas. Madam Speaker, I submit the following 
article.

               [From the Washington Post, Sept. 28, 2009]

                          The FCC's Heavy Hand

       In a speech at the Brookings Institution last week, Federal 
     Communications Commission Chairman Julius Genachowski 
     promised that his agency's plan for regulating Internet 
     service providers (ISPs) will be ``fair, transparent, fact-
     based and data-driven.''
       That's nice. But Mr. Genachowski failed to convincingly 
     answer the most important question of all: Is this 
     intervention necessary?
       Mr. Genachowski claims to have seen ``breaks and cracks'' 
     in the Internet that threaten to change the ``fundamental 
     architecture of openness.'' He and other proponents of 
     federal involvement cite a handful of cases they say prove 
     that, left to their own devices, ISPs such as Comcast Corp. 
     and AT&T will choke the free flow of information and 
     technology. One example alluded to by the chairman: Comcast's 
     blocking an application by BitTorrent that would allow peer-
     to-peer video sharing. Yet that conflict was ultimately 
     resolved by the two companies--without FCC intervention--
     after Comcast's alleged bad behavior was exposed by a 
     blogger.
       Mr. Genachowski offered two proposals to combat alleged ISP 
     misconduct. One should be embraced, the other shelved.
       Mr. Genachowski is right to insist that ISPs be candid with 
     the agency and the public about network management practices. 
     Such disclosures are necessary, Mr. Genachowski asserted 
     correctly, to ``give consumers the confidence of knowing that 
     they're getting the service they've paid for'' and ``enable 
     innovators to make their offerings work effectively over the 
     Internet.'' Transparency should go a long way toward allaying 
     the concerns of those who fear ISP manipulation of markets. 
     It also puts in doubt the need for Mr. Genachowski's second, 
     dubious offering.
       Aptly dubbed an ``immodest proposal'' by the Free State 
     Foundation's Randolph J. May, the FCC would prohibit ISPs 
     from ``discriminating against'' different applications. Mr. 
     Genachowski explains it this way: ISPs ``cannot block or 
     degrade lawful traffic over their networks, or pick winners 
     by favoring some content or applications over others in the 
     connection to subscribers' homes.'' In short, ISPs, which 
     have poured billions of dollars into building infrastructure, 
     would have little control--if any--over the kinds of 
     information and technology flowing through their pipes.
       In a slight concession, Mr. Genachowski said that the 
     commission would consider whether to allow ISPs to offer 
     ``managed services in limited circumstances''; this approach 
     could allow ISPs to create a two-track delivery system--one 
     for routine traffic, the other for applications that use 
     exorbitant amounts of bandwidth. But unneeded regulation 
     could still interfere with their ability to manage bandwidth-
     hogging applications that can hamper service, especially 
     during peak times.
       Mr. Genachowski claims that the FCC ``will do as much as we 
     need to do, and no more, to ensure that the Internet remains 
     an unfettered platform for competition, creativity and 
     entrepreneurial activity.'' He will advance this goal by 
     insisting on transparency; he will jeopardize it--and stifle 
     further investments by ISPs--with attempts to micromanage 
     what has been a vibrant and well-functioning marketplace.

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