FCC Cuts Bold New Course on Network Neutrality

Federal Communications Commission Chairman Julius Genachowski proposed Sept. 21 new network neutrality rules that would require carriers to deliver broadband in a non-discriminatory manner and to disclose their network management policies in a transparent manner. Genachowski also said the FCC would explore whether to extend network neutrality rules to mobile carriers.
Genachowski said his proposals would be included in an NPRM (notice of proposed rule making) to be presented to the FCC at its October open meeting. Although the process is expected to take months, fellow FCC Democrats Michael Copps and Mignon L. Clyburn said they would support the NPRM, giving Genachowski a majority vote.
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.
Genachowski’s proposal would add non-discrimination 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,” Genashowski said in an address before the Brookings Institute. “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.”
Genachowski stressed, though, “The enforcement of copyright and other laws and the obligations of network openness can and must co-exist.” He also said the NPRM would “analyze fully the implications of the principles for mobile network architectures and practices,” which are not currently subject to the agency’s network neutrality principles.
CTIA, the trade group that represents wireless carriers, was quick to issue a statement from Chris Guttman-McCabe, vice president of regulatory affairs, that said, “We are concerned about the unintended consequences Internet regulation would have on consumers considering that competition within the industry has spurred innovation, investment and growth for the U.S. economy.”
CTIA also questioned Genachowski’s statements that wireless carriers suffer from limited competition among service providers.
“This is at the core of our concerns. Unlike the other platforms that would be subject to the rules, the wireless industry is extremely competitive, extremely innovative and extremely personal,” Guttman-McCabe said in the statement. “How do the rules apply to the single-purpose Amazon Kindle? How does it apply to Google’s efforts to cache content to provide a better consumer experience? How about the efforts from Apple and Android, BlackBerry and Nokia, Firefly and others to differentiate the products and services they develop for consumers? Should all product and service offerings be the same?”
While CTIA questioned Genachowski’s proposal, fellow commissioners Copps and Clyburn rushed to praise the decision, issuing statements before Genachowski finished speaking.
“The Internet was born and thrived on openness. Keeping it open as some players amass
the power for gatekeeper control is essential,” Copps said. “The FCC’s Statement of Four Internet Principles that we won in 2005 was the initial down-payment toward that objective. Chairman Genachowski’s bold announcement today is a significant further investment in safeguarding Internet freedom. I salute him for it.”
Clyburn added, “I fully support Chairman Genachowski’s intention to take affirmative measures to preserve the openness of the Internet. The chairman’s statement today is an important first step in setting forth clear rules of the road that will ensure the Internet’s continued vibrancy. As a former small business owner, I am keenly aware of how an open and transparent Internet can serve as an equalizing force for new entrants to the marketplace.”