Net Neutrality Comments Pile Up at FCC

The letters—pro and con—keep pouring in for the Federal Communications Commission, 48 hours before the agency is scheduled to vote on proposed new network neutrality rules. One day it's 72 Democratic members of Congress urging the FCC to proceed with caution, the next day Republicans raise the specter of Internet regulation and yet another day a number of public interest groups and high-tech companies praise the initiative.

Other than health care reform and Afghanistan, network neutrality is one of the hottest political issues currently bouncing around Washington, a grim turn of events for broadband carriers like AT&T, Verizon and Comcast that began with President Obama's election and his subsequent appointment of Julius Genachowski to serve as the FCC chairman. Under Republican leadership, network neutrality was neatly bottled into some FCC principles that are under court challenge.

Genachowski proposed new network neutrality rules Sept. 21 that would require carriers to deliver broadband in a nondiscriminatory manner and to disclose their network management policies transparently. Genachowski also said the FCC would explore whether or not to extend network neutrality rules to mobile carriers. Obama quickly followed with an endorsement of Genachowski's plans.

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The broadband carriers remain implacably opposed to the FCC establishing rules on how they should manage their networks. Carriers and their surrogates argue that expanded network neutrality rules would stop broadband investment in its tracks. As Jim Cicconi, AT&T's senior executive vice president for external and legislative affairs, bluntly puts it, "The [FCC] is poised to regulate the Internet in a manner that would drive up consumer prices and burden companies like ours while exempting companies like Google."

Yet, as Aneesh Chopra, Obama's CTO, pointed out Oct. 17 on C-SPAN, "There aren't even any rules out yet for anyone to criticize."

That process will begin Oct. 22, when the FCC is expected to approve a new set of network neutrality rules. The vote is only to approve the rules, still unknown and unseen, for public discussion. Once the public comment period ends, the FCC will vote again to actually approve the rules. History shows that whatever the outcome of the vote, lawsuits will follow.

The FCC currently enforces network neutrality on a case-by-case basis through four principles the agency approved in 2005. The principles prohibit broadband carriers from blocking lawful Internet content, applications and services, and allows users to attach legal devices to the network. Comcast has already sued to have the FCC network neutrality principles dismissed as unenforceable.

Genachowski, at a minimum, wants to codify the current principles into enforceable rules. He has also proposed adding nondiscrimination as another network neutrality principle, prohibiting broadband providers from discriminating against particular Internet content or applications. In addition, broadband providers would be required to disclose their network management policies.

"This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers' homes," Genachowski said Sept. 21. "Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed."

Genachowski repeatedly said the proposed new network neutrality rules were not designed to prevent broadband carriers from effectively managing their network traffic.

"During periods of network congestion, for example, it may be appropriate for providers to ensure that very heavy users do not crowd out everyone else. And this principle will not constrain efforts to ensure a safe, secure and spam-free Internet experience, or to enforce the law," Genachowski said. "It is vital that illegal conduct be curtailed on the Internet. As I said in my Senate confirmation hearing, open Internet principles apply only to lawful content, services and applications—not to activities like unlawful distribution of copyrighted works, which has serious economic consequences."