No Neutrality on Network Management

FCC Chairman Kevin Martin laid down some markers April 22 on what the agency is considering as appropriate broadband network management practices. And, no thanks, he told a U.S. Senate panel, the FCC doesn't need any additional help from Congress in enforcing network neutrality.

"I do not believe any additional regulations are needed at this time because we have a complaint and adjudication process," Martin told the U.S. Senate Commerce Committee. "But I also believe that the Commission has a responsibility to enforce the principles that it has already adopted."

Those principles include the right of consumers to access legal Internet content and the right to run the legal applications and services of their choice using the devices of their choice. The FCC makes an exception for "reasonable" network management practices.

Among the network management practices Martin identified as likely to be unacceptable was discriminating against any particular application, such as P2P (peer to peer) technologies, in handling network traffic. In addition, Martin suggested carriers must fully disclose to consumers their network management practices.

"Adequate disclosure of the particular traffic management tools and techniques—not only to consumers but also to the designers of various applications and entrepreneurs—is critical," Martin said.

Martin also noted that the FCC would consider whether a broadband provider's actions are based on stopping illegal activity. "The Commission's network principles only recognize and protect user's access to legal content," Martin said. "The sharing of illegal content, such as child pornography or content that does have the appropriate copyright, is not protected by our principles."

Traffic Throttling Under Scrutiny

Martin's comments came even as the FCC continues its investigation of Comcast's network practices, which Martin found lacking. Comcast is facing charges it deliberately throttles P2P applications such as BitTorrent. Comcast says its policy falls within the FCC's reasonable network management exception to the agency's network neutrality rules approved in 2005.

"The Commission is still investigating these complaints and we have not yet determined whether the actions violated our principles protecting consumer access to the Internet," Martin said. "However, Comcast appears to have utilized Internet equipment from Sandvine or something similar that is widely known to be a relatively inexpensive, blunt means to reduce peer-to-peer traffic by blocking certain traffic completely."

Martin told lawmakers that if a broadband provider is found to be abusing its network management practices, "I believe we should evaluate the practices with heightened scrutiny, with the network operator bearing the burden of demonstrating that the particular practice furthers an important interest and that it was narrowly tailored to serve that interest."

For example, Martin said, if a complaint against a carrier involves stopping illegal content, "A network provider should not block a particular application to all users if that application transmits both legal and illegal content."

The Solution Finds Its Problem?

Of the handful of senators who showed for the hearing, only Byron Dorgan, D-N.D., and John Kerry, D-Mass., pushed Martin on the idea of federal network neutrality laws. Kerry is a co-sponsor of network neutrality legislation introduced early in 2007 by Dorgan and Olympia Snowe, R-Maine. The bill has not seen the light of day since it was introduced.

"In recent years, [network neutrality] policy has received too little interest," Kerry said. "It’s becoming politicized and polarized. We're told it is a solution in search of a problem. Well, we've found the problem. [Broadband providers] are doing what they said they wouldn't do."

Dorgan commented that Comcast's actions occurred "under rules for open access. [Carriers] like to find ways to charge tolls. They'll want to find other streams of revenue."

Republicans on the panel, though, remain implacably against network neutrality laws.

'Writing regulations on how what we think competitors might do is risky business indeed," John Sununu, R-N.H., said. Sen. Ted Stevens, the former chairman of the committee, added, "Intense regulation of the Internet interferes with the dynamic of the Internet."