Yesterday, during a speech at the Brookings Institute, FCC Chairman Julius Genachowski proposed new rules that would affect Internet access providers.

Saying the FCC must be a "smart cop on the beat preserving a free and open Internet," FCC Chairman Julius Genachowski Monday proposed adding two new Internet access principles to the existing four, and will begin the process of codifying all of them with a Notice of Proposed Rulemaking at the FCC’s October meeting.

In a written statement, NCTA’s President & CEO Kyle McSlarrow applauded Genachowski’s "vision of preserving an open Internet in order to promote entrepreneurship without permission." He reiterated the cable industry’s commitment "to an open Internet that allows consumers to use and enjoy lawful content and services of their choosing."

He also said:

We recognize that we may, however, have a different view about the state of competition and the choices and benefits that flow to consumers from that competition.  While we look forward to working with Chairman Genachowski and his colleagues, we will continue to present facts and data to the Commission that suggest that any regulation in this arena should be approached with great caution and only in the most targeted way, and to advocate policies that avoid government entanglement in operational decisions that could undermine the very dynamism of the Internet we all seek to preserve.

David L. Cohen, on the Comcast Voices blog, also indicated their support for the process.

We welcome the dialogue suggested by the Chairman in his comments, and we completely agree that any consideration of new “rules of the road” begin with notice and an open, public rulemaking proceeding – this is both fair and appropriate.

A tweet from Julian Sanchez yesterday raised an interesting point. There are those who may object to any government regulation at all. There are also those who may reflexively support any regulation that seems to be opposed by "big companies."

Previously, we noted on this blog how the "net neutrality" debate has evolved over time. NCTA has consistently supported our customers’ ability to travel the Internet freely; our Internet access service wouldn’t be of much use without that. But the devil is always in the details and while we have always supported fair rules, it will be critical to move forward carefully.

At a time when our country is developing a National Broadband Plan, it absolutely makes sense to have a single definition of the term “broadband” for regulatory and policy purposes. The FCC announced last month that it was releasing a Public Notice, requesting input on this issue (The FCC’s Carlos Kirjner discussed this in further detail in a blog post) and on Monday, we filed comments in response to this Public Notice.

It’s worth noting that this isn’t the first time the FCC has visited this issue, since the Commission adopted a new definition just last year in connection with changes to the Form 477 broadband reporting process. The 477 process semi-annually collects information from service providers about broadband connections to households and businesses; info has been collected each year, starting with data as of December 31, 1999.  Last year, the Commission found that services with download speeds of more than 768 kbps and upload speeds of more than 200 kbps will be defined as “broadband” services. Such a definition was important for the NTIA and RUS to have for use in their broadband funding programs.

But, as we say in our filing, we don’t think it would be a good idea for the Commission to use the process of defining “broadband” as a vehicle for imposing obligations or setting goals with respect to factors such as speed, price, symmetry or “openness.”  The definition has been, and should continue to be, simply a way to describe what is being made available to customers.  Any discussion of national broadband goals or potential service provider obligations should be done separately.  As cable’s history of providing faster and faster speeds demonstrates, the FCC’s definition has never served as a constraint on what is offered to consumers. What’s needed is a generic definition that focuses on the core functionality of the broadband service that customers are receiving today.

We identify three key advantages to such an approach:

• Using the definitions already in Form 477 (also used by NTIA in its recent mapping Notice of Funds Availability), will enable the Commission to compare a consistent set of data over time.
• Using those existing definitions will avoid the need to make additional changes to the Form 477 reporting process.
• It’s helpful for government agencies to use a consistent set of definitions.

Consistency is important and if we try to measure aspects at too granular a level, it becomes difficult to achieve such consistency.  For example, some parties have raised concerns about using advertised speeds as the basis for measuring broadband deployment.  In the Notice, the Commission notes that advertised speeds “generally differ from actual rates, are not uniformly measured, and have different constraints over different technologies.”  But simply requiring providers to report “actual” speed won’t lead to more meaningful information because there is no uniformity in how it is measured and there are numerous factors beyond the control of the provider that affect upload and download speeds.  Consequently, in our comments, we encouraged the Commission to work with the Internet engineering community to develop a consistent, uniform, reliable method of measuring “actual” speed before making a change.

There are proponents who argue that symmetry should be required, but most broadband networks are engineered to provide higher speeds for downloading than for uploading. Such an approach is based on consumer preferences and behavior; if symmetrical services are required, that would prevent providers from offering asymmetric services that might better suit the needs of some consumers.

A comparison might be made to creating a definition of a “computer.” Such devices can range from a netbook costing a couple hundred dollars to several thousand for a Mac Pro. The core functionality of various computers is what remains the same. Such a straightforward approach is also best when attempting to define broadband, as it exists at this time.

The US Court of Appeals for the District of Columbia Circuit has overturned an FCC decision to impose a cap on cable companies – barring them from serving more than 30% of cable customers nationwide. The ruling reaffirms a 2001 court decision that rejected the same cap.

In vacating the FCC decision, the court found:

• The Commission had failed to demonstrate that allowing a cable operator to serve more than 30% of all cable subscribers would threaten to reduce either competition or diversity in programming
• The record is replete with evidence of ever increasing competition among video providers
• Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act
• Cable operators no longer have the bottleneck power over programming that concerned the Congress in 1992
• Over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers.

Citing, “overwhelming evidence concerning ‘the dynamic nature of the communications marketplace,’ and the entry of new competitors at both the programming and the distribution levels”, the court found the FCC’s decision to be arbitrary and capricious.

In response, FCC Commissioner Robert McDowell issued the following statement:

It was clear in December 2007, when I dissented from the FCC decision to once again impose a 30 percent national cap on cable system ownership, that the effort to re-justify the very same cap that the D.C. Circuit first struck down in 2001 was even more vulnerable to court challenge the second time around.  Despite the Commission staff’s best efforts to provide post hoc empirical support for the chosen outcome, the court recognized that the 2007 analysis’ aging data and questionable assumptions sat oddly against the facts about new – and successful – competitors to cable systems in the multichannel video marketplace.  It should go without saying that, in the future, outcomes in our proceedings should be driven by the facts and law, rather than the other way around.

Since this has been a busy week, it seemed like a good time to provide an update on the broadband stimulus implementation process. I’ll refer you back to this earlier video from NCTA President & CEO Kyle McSlarrow and our White Paper; we think a strong broadband infrastructure is a good thing and we think the use of grants to promote broadband is a good thing, but we also think the funds ought to be used efficiently and we think the process ought to be fair & transparent.

On Monday, James Assey, Executive Vice President of NCTA, participated in a Roundtable on Nondiscrimination and Interconnection Obligations.

As part of the stimulus package, funding was included to “establish a Broadband Technology Opportunities Program for awards to eligible entities to develop and expand broadband services to rural and underserved areas and improve access to broadband by public safety agencies.” NTIA and RUS, the agencies that are implementing BTOP, are holding a series of public meetings, and Monday’s event was part of this. In broad terms, “Nondiscrimination and Interconnection Obligations” refers to how networks interact with each other and exchange traffic.

That’s a whole lot of background to set-up the statement that Assey delivered, which can be accessed on our website, along with a summary.

On Tuesday, NCTA Associate General Counsel Steve Morris spoke on a panel at another public meeting. Andrew Feinberg at BroadbandCensus.com provided coverage:

The statutory guidelines provide a good start in determining standards, said Morris. Morris invoked President Obama’s call for a transparent process, and said it be governed by a merit-based system of seven objective measurements to be shared between NTIA and RUS.

Job creation and preservation should be first and foremost among the selection criteria, Morris said. Preference should also be given to those applicants that can complete build-out within the statutory time periods, and that are able to maintain projects afterwards.

Infrastructure should be built out first the “last mile,” Morris said. And programs that target schools, libraries, and other “public interest” institutions should be ranked ahead of those that don’t, he added. Further considerations could be cost per capita and relative expense compared to other forms of communication, he said.

On Wednesday, NCTA responded to a Request for Comments on the FCC Report On Rural Broadband Strategy; those comments can also be found on our website. Essentially, we called for complete interagency communication and coordination; transparency; a set of coherent and clearly defined goals; an update of the FCC’s universal service and pole attachment policies; and an initial focus on extending broadband facilities to unserved areas and underserved populations.

Also this week, Representatives Joe Barton [R, TX-6] and Cliff Stern [R, FL-6] sent a letter to NTIA, RUS and the FCC about the broadband stimulus funds. You should read the letter, but some of the key points are:

• Stimulus funds should go where broadband mapping has been completed
• Funding should go to the unserved over the underserved
• We should stimulate demand rather than supply
• These efforts should be technologically & competitively neutral
• We should fund economically efficient projects

Today, we started trucking equipment over to the Washington Convention Center here in D.C. A crew will start setting up our Broadband Nation exhibit over the weekend (see this previous post).

Broadband Nation is our 20,000-square-foot interactive exhibit at The Cable Show.  This exhibit will demonstrate the many ways in which broadband technology has changed the way Americans live, work and play.  It’s a hands-on opportunity to experience a wide variety of innovative new technology products and services available both now and possibly in the future for the home, school, and office, as well as specialized applications for medical centers, schools, and retail and entertainment outlets, among others. Broadband Nation seeks to capture in tangible ways how broadband has, and will, alter the everyday life of Americans; the exhibit will provide a good rationale for the broadband stimulus funding.

Next week, there will also be a couple sessions at The Cable Show that will focus on this issue.

• Wednesday, April 01, from 3:00 – 4:15 p.m., the session “21st Century Communications Policy: The Role of the States” will feature a conversation with State Public Utility Commissioners examining (like it says in the title) the states’ role in this process.
• Friday, April 03, from 11:00 a.m. – 12:15 p.m., the session “If We Build It, Will They Log On: Barriers to Broadband Adoption and Use” will look at how to drive adoption of broadband applications within the medical, education, safety and environmental/energy sectors.

In an interview with Multichannel News’ Ted Hearn, NCTA President & CEO Kyle McSlarrow offers some thoughts on the past year in telecommunications public policy and offers some thoughts on the incoming Obama administration.

Cover Story: Cable’s Chief Looks Back — And Ahead