FCC Nominations Hearing: July 15, 2009

Shayne Wagman
Tuesday, July 28, 2009

On July 15, the Senate Commerce Committee held a hearing for Federal Communication Commission (FCC) nominees Mignon Clyburn and Meredith Atwell Baker. President Obama nominated Clyburn and Baker to fill two vacant FCC Commissioner positions. The FCC has five Commissioners, only three of which can be from the same political party; the party of the current administration constitutes the majority. Clyburn, a Democrat, and Baker, a Republican, will be replacing outgoing Commissioners Jonathan Adelstein and Debi Tate, respectively. (Later in the week, the Senate confirmed Clyburn and Baker.)

Both nominees emphasized their commitment to the FCC’s principles of localism, competition and diversity. In their opening statements, each specifically mentioned their support of universal broadband deployment. Clyburn added that the FCC must remain aware of any policy reform’s impact on consumers and industry stakeholders and insisted that public service be a top priority. Baker stressed the importance of creating an interoperable public safety broadband network. The Senators’ subsequent questions, however, highlighted an especially important issue to the music community: network neutrality.

Network Neutrality is essential to preserving an open, accessible Internet. It allows local and independent musicians to compete on a level technological playing field with the biggest companies by preventing telecom and cable giants from charging content providers a fee for faster delivery of their sites and services. Currently, there are no laws in place protecting these crucial principles, despite a few legislative attempts and an FCC investigation into the network management practices of cable giant Comcast.

Baker supports network neutrality, but emphasized that telecommunications companies must still have the ability to engage in “reasonable network management” — in other words, she believes the companies who control the flow of information over the Internet should still be able to delay, or even block, certain “packets” of information in order to make other content flow efficiently. According to Baker, network neutrality principles should not protect unlawful content transfers such as spam, child pornography and copyright infringement.

This point of view, however, can be problematic for music lovers and copyright holders. It is not always easy to tell whether a music download or stream is a copyright infringement. Sometimes it can be a fair use. A fair use of the work is not an infringement on the copyright holder’s rights. According to the U.S. Copyright Office,  “[t]he distinction between fair use and infringement may be unclear and not easily defined.”[1] In general, reproducing and/or distributing a copyrighted work for comment, criticism, education, scholarship, or news reporting may be fair uses of the work.

Telecommunications companies have a history of blocking or delaying music traffic without taking into account fair use rights. In 2008, the FCC issued an order to prevent Comcast from blocking BitTorrent traffic. There was no evidence that Comcast took into account fair use. In fact, the FCC specifically noted the “arbitrary nature of the blocking.”[2] Under the law, copyright owners must consider fair use before sending takedown notices to websites hosting music and other potentially infringing content.[3] It seems reasonable, then, to ask telecommunications companies to consider fair use before blocking a music download or stream. While FMC clearly supports network neutrality for legal content only, we also want to ensure that telecommunications companies are not dictating what is and is not legal.

Clyburn also responded to questions concerning network neutrality. Senator Maria Cantwell inquired whether having multiple broadband providers would eliminate the need for network neutrality. Clyburn answered in the affirmative, saying that there is no need for network neutrality in a competitive marketplace with multiple providers. Presumably, this is because increased competition between Internet providers would effectively induce them to implement network neutrality principles. After all, if Internet Provider X an open platform for access and content delivery, while Internet Provider Y makes some sites load slower than others, more customers will choose Internet Provider X. However, the hearing did not clarify how many providers would constitute a “competitive marketplace,” and whether other factors would prevent them from providing equal access to all Internet content.

Network Neutrality is an increasingly important issue, especially in light of the FCC’s impending broadband deployment plan. A solid plan for broadband deployment would provide fast, affordable Internet access to more American communities — particularly those in rural areas. As music continues to shift away from a physical product, digital technologies have become the new standard for the distribution, access and promotion of music. Currently, many people don’t have access to broadband Internet. In fact, the Washington Post recently reported that fifty percent of “core country music fans” lack any access in their homes. Without proper broadband deployment, artists’ ability to connect with fans and sustain their careers could be greatly undermined.

When more Americans gain access to high-speed, affordable broadband Internet, it is essential that they have equal access to all legal platforms and content. Implementing Network Neutrality standards would go a long way towards ensuring that the networks of tomorrow allow for the kind of innovation and participation that are key to musicians’ livelihoods. When the Senators asked the nominees’ positions on broadband deployment, both Clyburn and Baker continually reiterated their support of universal broadband access. FMC commends their commitment to this important goal.

For more information on Network Neutrality, check out our Rock the Net Campaign [LINK]. You can also check our blog/homepage?? [LINK] for more updates on the FCC nominations process.

[1] U.S. Copyright Office, “Fair Use” available at http://www.copyright.gov/fls/fl102.html

[2] STATEMENT OF CHAIRMAN KEVIN J. MARTIN Re: Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices, File No. EB-08-IH-1518, WC Docket No. 07-52 at 40.

[3] See Stephanie Lenz v. Universal Music Corp., 545 U.S. 913 (2005)