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FCC: Network Managers Guilty Until Proven Innocent?

The FCC is reportedly considering putting "the burden on the network operator to prove that its network practices are reasonable" in its net neutrality proceeding on Comcast's network management, according to today's top story in Washington Internet Daily.

  • Assuming that this report is accurate, and assuming that an FCC majority would approve such a shift of the burden of proof, let me explain why such an FCC ruling would be a profound assault on the freedoms that Americans hold most dear.   

It would be supreme irony, if in the supposed name of "Internet Freedom," the FCC somehow ruled that network operators had no freedom to manage their private property, enter into contracts or pursue business without prior permission from the FCC.

  • Freedom from Government is central to the U.S. Declaration of Independence which declares "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." 
  • The Fifth Amendment of the U.S. Constitution guarantees the presumption of innocence: No person shall "be deprived of life, liberty, or property, without due process of law."   

Why would it be bad to put "the burden on the network operator to prove that its network practices are reasonable"?

  • It assumes network operators are "guilty until they prove themselves innocent."
    • This would turn the U.S. Constitution's guarantee of Due Process upside down; it would be amazing if the courts did not ultimately rule it unconstitutional.
  • It assumes a "prior approval process" for most anything a network operator would do in managing their network -- until the FCC ruled -- in order to ensure they would not be penalized for doing something that has not been specifically approved by the FCC before.
    • Such a de facto prior approval system for the most basic of activities, network management, tramples any concept of freedom.
  • It assumes "quality of service" is not important or a priority. 
    • Requiring a network operator to effectively seek guidance from the FCC prior to managing the network to maintain its contractural obligations to consumers -- ensures that consumers would endure long periods of poor quality of service.
  • It assumes all network management is per se bad and should be banned unless and until the FCC approves a network management innovation.
    • This puts the FCC square in the middle of de facto picking, which technologies will be deployed in the network, and which companies will succeed or fail.
  • It assumes industry collaboration between network operators and application/content providers is per se bad and should be banned unless and until the FCC approves of the network management collaboration.
    • This would run counter to the longstanding practice of industry not government setting technology standards.
  • It assumes network operators don't own their networks and have no constitutional property rights to manage them.
    • The most fundamental rights of property owners is the freedom to create value from property without prior approval of the Government.
  • It assumes that the introduced Markey Bill, "HR 5353 The Internet Freedom Preservation Act of 2008," which has not passed either the House or Senate, represents current policy of the United States, rather than the actual bipartisan policy on the United States which has been law since 1996:
    • "It is the policy of the United States, to preserve the vibrant and competitive free market that presently exists for the Internet... unfettered by Federal or State regulation."
    • The courts defend actual law not proposed law.

Bottom line: I truly hope the report that prompted this post is not true. 

  • However, after getting deep into the weeds of counting blades of grass to see if any blade of grass may have been treated non-neutrally, the FCC needs to ensure it can regain the appropriate perspective, when setting such important Internet economy precedents as this decision represents.
  • The FCC must endeavor to see the "forest for the trees" and not become the Federal Chlorophyl Commission.