ArtsWatch: FCC Proposes New Approach To Regulate Internet Transmission

Compromise is intended to be light-touch regulation, but commissioners are divided
May 10, 2010 -- 9:53 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

The Federal Communications Commission wants its Internet regulatory authority back, and on May 6 Chairman Julius Genachowski announced his proposed solution — an innovation that imposes some stricter regulations and uses a time travel argument to defend them. Early last month, the U.S. Court of Appeals delivered its Comcast v. FCC decision, finding that the FCC lacked statutory authority to regulate Net neutrality. Describing the origin of this problem, Genachowski said, "The legal theory that the Comcast opinion found inadequate has its roots in a series of controversial decisions beginning in 2002 in which the commission decided to classify broadband Internet access service not as a 'telecommunications service' for purposes of the Communications Act, but as something different — an 'information service.' As a result of these decisions, broadband became a type of service over which the commission could exercise only indirect 'ancillary' authority, as opposed to the clearer direct authority exercised over telecommunications services. Importantly, at the time, supporters of this 'information services' approach clearly stated that the FCC's so-called 'ancillary' authority would be more than sufficient for the commission to play its backstop role with respect to broadband access services and pursue all sensible broadband policies." The FCC is widely believed to have the potential to change its mind — since it had the discretion to switch in the first place it should have the discretion to switch back. Genachowski rejects both choices and has proposed a third way, regulating only the transmission component of broadband as a telecommunications service. He believes this approach gives his agency just the authority it needs, but his fellow commissioners are divided. Michael J. Copps (statement) believes it does not go far enough and said, "The path we start down today must do more than just put this agency's authority over broadband back on life-support... One near-death experience is enough." Commissioners Meredith A. Baker and Robert M. McDowell (statement) believe it is overregulation and said, "This proposal is disappointing and deeply concerns us. It is neither a light-touch approach nor a third way. Instead, it is a stark departure..." In other words, the Republican commissioners don't buy the time travel argument that the only thing this proposal does is to restore the agency's authority to what the ancillary authority was considered to cover before the Comcast decision put a stop to that. So coming up next — an FCC proceeding with a public comment period, an FCC vote on the proposals, major public relations battles between Net neutrality advocates and opponents of more regulation, and of course an aftermath likely to include protracted court battles.

The office of the U.S. Trade Representative released its annual Special 301 report on April 30 ranking 41 nations with significant problems in intellectual property protection onto a watch list and a priority watch list. China and Russia are habitual worst offenders despite major efforts to improve, and Canada remains on the priority watch list because of its failure to pass stricter laws. The Czech Republic, Hungary and Poland are notable for having improved enough to not be included on this year's watch list. The RIAA thanked the USTR and administration officials for their efforts and called attention to the harmful effects of high levels of content piracy on countries' local markets. This year's review was marked by the active engagement of consumer advocates who see the whole process as one-sided. For example, Public Knowledge said, "Our comments and oral testimony have been completely ignored. By contrast, in keeping with the cozy relationship between the USTR and IP industries, the copyright industry claims, however unsubstantiated or self-serving seem to have carried the day. The danger of this process is that it subjects sovereign nations to unfair trade pressures as a means of getting their IP laws to protect the interest of rights-holders at the expense of broader public interest."

U.S. Intellectual Property Enforcement Coordinator Victoria Espinel posted nearly 1,600 public comments responding to her request for input as her office develops a joint strategic plan for IP enforcement. ArtsWatch recently covered several submissions from entertainment industry organizations as well as from consumer advocates. The Copyright Alliance commented on the extensive list and said, "...none of the submissions from artists were form letters. I saw two form letters from copyright opponents making somewhat frequent appearances, both telling a White House official mandated to improve IP enforcement to, essentially, do less enforcement. Hmm. That the time and effort to craft personal submissions came from artists and creators is hardly surprising, given they have far more at stake in the debate than those who wish to access their works without permission or compensation."

Responding to a request for comments from the Copyright Office regarding termination rights, the Authors Guild and the Songwriters Guild of America filed a joint comment on the April 30 deadline. The organizations are calling for legislative clarification of a gap in the law that could prevent artists from exercising their rights if the contract they were working under was pre-1978 but the publication or registration of a work was not until 1978 or later. The Copyright Office has received and posted 16 comments; reply comments are due by May 14.

After a small Florida blues label sued Google for infringement late last year and then withdrew its suit, planning to refile, the search engine giant was not willing to wait. On April 28, Google sued the label in Northern California's U.S. District Court requesting declaratory judgment that it qualifies for safe harbor protection, has not engaged in infringement of any kind, and is entitled to attorney fees.


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