FCC and Network Neutrality rules
October 28, 2009 at 12:29 pm #83949
FCC proposes network neutrality rules (and big exemptions)
By Nate Anderson
Date: October 22, 2009
The FCC unveiled its six network neutrality rules today, along with a pair of gaping exceptions. But does the agency even have the authority to regulate the ‘Net? The Republicans and the EFF both say no.
As expected, the FCC laid out its draft network neutrality rules at an open meeting today. Despite the partial dissent of the two Republican commissioners, the pro-neutrality faction has won a major rhetorical battle; even its toughest opponents sing the praises of a “free and open Internet.”
The draft rules are short, taking up less than two pages of text. At their heart are the four existing “Internet freedoms” that the FCC approved back in 2005:
* Consumers are entitled to access the lawful Internet content of their choice
* Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement
* Consumers are entitled to connect their choice of legal devices that do not harm the network
* Consumers are entitled to competition among network providers, application and service providers, and content providers.
The proposed rules make the principles binding, but they also add two new items to the list: nondiscrimination and transparency.
* A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner
* A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking
Are there exceptions? Of course there are, and the ways that the exceptions are put into practice will have a significant effect on US network design.
First, all six principles are subject to “reasonable network management.” No one’s sure what that means, but the FCC staff have now developed guidance that is far more helpful than the previous (nonexistent) guidance.
Network management is reasonable if it is used
* To manage congestion on networks
* To address harmful traffic (viruses, spam)
* To block unlawful content (child porn)
* To block unlawful transfers of content (copyright infringement)
* For “other reasonable network management practices”
The ambiguity of that last item is striking, and we’ll have to see what sorts of things the FCC allows in practice before understanding just how wide this exemption really is.
The second exemption to the rules is for “managed services,” another hazy area. FCC staff are defining managed services as offerings that are provided over the same networks as regular Internet access but that “differ from broadband Internet access service in ways that suggest a different policy approach.” This includes things like voice services and telemedicine, but it’s obviously a pretty broad category, and the FCC is asking for guidance on how to define it.
It appears that the agency is looking for ways to let telcos and cable companies offer additional, prioritized services over a single line, things like analog and digital voice, cable TV, and low-latency connections for medical use.
The rules apply to every Internet connection, wired and wireless, though what is “reasonable” may vary by connection type and even by network speed. As Commissioner Michael Copps put it in his supporting remarks, “What is reasonable today might be unreasonable tomorrow—and vice versa” as networks expand.
There’s nothing new here?
Chairman Genachowski pitched the move as evolutionary rather than revolutionary, noting that the FCC in the past (and under Republican leadership) had already adopted the four Internet principles, slapped network neutrality conditions on the AT&T/BellSouth merger, and made the decision to sanction Comcast.
And while he’s willing to listen to everyone, people should know that “‘anything goes’ is not a serious argument” at the Genachowski-led FCC. He argued that proper rules are a spur to investment, not a barrier, and says that he remains fully aware of “the risk of unintended consequences.” Hence, the rules are meant to be brief, and to be general, with several big exemptions so as not to bind the agency’s hands in the future.
The three Democratic commissioners also called out the scariest rhetoric surrounding network neutrality rules. Mignon Clyburn singled out the parties that prefer “radioactive rhetoric” and said it might yield headlines but not good results with her. Copps bashed the “Chicken Littles running around proclaiming the sky’s falling” and called for facts, not fear.
Even those who opposed the rules were limited in their criticism; both Robert McDowell and Meredith Baker applauded the process so far and the idea of the open Internet. Comcast’s statement opened the same way: “We share and embrace the objective of an open Internet, as we always have.” The cable lobby agrees, telling Ars, “To be clear, we regard this as a debate about means, not ends; we support a free and open Internet.”
Everyone loves openness, but the two Republican commissioners worry that FCC rules aren’t the way to get there, and both claim that the agency did not have the authority to make such rules.
In an odd twist, the Electronic Frontier Foundation agrees. Despite supporting neutrality, the group argues that “Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality.” (This is the basic argument being made now in federal court by Comcast.)
The danger is that such authority over the Internet might today be used for good, but “it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn’t take much imagination to envision a future FCC ‘Internet Decency Statement’… And it’s also too easy to imagine an FCC ‘Internet Lawful Use Policy,’ created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance.”
But Genachowski is pushing ahead. Comments on the draft rules are due in January 2010, with reply comments due in March 2010; final rules could arrive by next summer.
Whatever one thinks of the draft rules, it remains encouraging to see the FCC doing things the “right way.” Under predecessor Kevin Martin, a “Notice of Proposed Rulemaking” might be issued without containing the actual draft text of the rule—a fact that several commissioners noted. And Genachowski has the FCC blogging (even liveblogging the meeting), is overhauling the agency website, and has ditched the horrible RealPlayer streaming setup in favor of Flash video that actually works the first time. Kudos.
© 2009 Condé Nast Digital.
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