Kevin Martin, the Republican chairman of the Federal Communications Commission, is drawing fire from economic conservatives over his plan to declare that Comcast violated the law when throttling BitTorrent last year.
The vote is expected at a FCC meeting (PDF) on Friday morning. It promises to be a landmark one: this would be the first time the commission has ruled on a Net neutrality violation. (An earlier one was settled without a formal ruling.)
Martin's intra-party backlash started on Wednesday with an editorial in the Wall Street Journal that started with this uncomplimentary paragraph: "Bad personnel decisions have haunted the Bush Administration, and one of the bigger disappointments is Federal Communications Commission Chairman Kevin Martin. In his last months as Master of the Media Universe, he seems poised to expand government regulation of the Internet."
The Journal also reported in a news article on Friday that the Bush administration itself is irritated. "We're concerned about the decision," Meredith Attwell Baker, acting head of the Commerce Department's National Telecommunications & Information Administration, told the paper. "It appears to reverse a decade-old bipartisan policy against regulation of the Internet."
There's also House Republican Leader John Boehner, an Ohio Republican, who sent a letter (PDF) to Martin on Thursday warning him of going through with his plan to rule against Comcast, with the help of the five-member FCC's two Democrats. The text of the letter:
Dear Chairman Martin,
I am dismayed by recent press reports that you intend to interfere with the network management decisions of broadband providers, essentially regulating the Internet. As one of your Republican colleagues at the FCC, Commissioner McDowell, so aptly explained in his July 28 Washington Post editorial, "[t]he Internet has flourished because it has operated under the principle that engineers, not politicians or bureaucrats, should solve engineering problems." Congress has intentionally refrained from imposing the heavy hand of government, which is precisely why we have seen such rapid growth in the Internet. As the Wall Street Journal editorial board pointed out July 30, "the FCC's job is not to determine business models in the private sector. The community of Internet service and content providers has proven itself more than able to work out problems on its own as Web use has exploded."
As press reports indicate, the current case is no different. Difficulties in quickly transferring large files led to the development of cutting edge peer-to-peer technology. When a small minority of subscribers--often using these applications to share pirated music and movies--began clogging the networks to the harm of the large majority of users, broadband providers began taking steps to alleviate the congestion. This, in turn, has prompted peer-to-peer developers to collaborate with broadband providers to find better ways to manage traffic. It is this market-based, self-governing nature of the Internet that is the key to its success. Your heavy handed attempts to inject the FCC into the middle of that process threaten to hijack the evolution of the Internet to everyone's detriment. It will also deter the very broadband investment we need for the Internet to continue growing to meet the increasing demands being placed upon it.
Adding insult to injury, it appears you are wading into this debate on very shaky procedural and legal grounds. While the FCC has endorsed certain Internet policy principles, it has never adopted regulations through a proper notice and comment rulemaking. Nor should it, for the reasons I outline above. Nonetheless, your continued pursuit of this matter suggests that you are making not only a poor policy judgment, but a poor legal one, as well. I urge you return to a sound market-oriented approach, rather than continue down the path you have chosen. It will surely stifle one of the greatest technological and economic success stories our Nation has seen.
Adam Thierer, a policy analyst at the free market Progress and Freedom Foundation (which began its days as Newt Gingrich's favorite think tank), wrote this week that liberal activists "will incessantly petition the FCC to review each and every business model decision and encourage the unelected bureaucrats at the agency to manage the Internet to their heart's content."
It's possible that this last-minute criticism will change Martin's mind, or he may be spooked at the prospect of damaging his future political viability (at least inside the Republican Party). We'll know for sure in a few hours.