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Legally arrived at principles for ISPs?


New FCC network neutrality effort has potential, but is not certain to be helpful



'Net Insider By Scott Bradner , Network World , 09/28/2009


About a year ago I lamented that the FCC supported neutrality on the Internet. Not that I thought carriers should be able to treat customers' traffic unfairly, but the FCC had acted without proper authority. The issue of a lack of authority may be about to be fixed, and if that happens the FCC will be faced with another question: If it can act, when should it do so?


In the case a year ago the FCC claimed that Comcast had violated the commission's Internet Policy Statement, which includes four principles that ISPs should meet in order to treat their customers fairly. The principles are a bit of motherhood and apple pie but, in spite of the FCC's reliance on them in the Comcast case, they cannot have the force of law since the FCC never adopted them through the process it must use to adopt binding regulations.

A number of my friends in the pro-network neutrality camp were not all that happy with me for what I said -- so it goes. Now the informal nature of these principles may be about to change. FCC Chairman Julius Genachowski announced in a Sept. 21 speech that the commission would begin a formal rulemaking process to adopt the four principles, plus two additional ones, at its October meeting. He also said that the principles should apply to all types of Internet service, not just to telephone companies.


The four original principles include: 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; and consumers are entitled to competition among network providers, application and service providers, and content providers.


The two new principles are: broadband providers cannot discriminate against particular Internet content or applications; and providers of Internet service must be transparent about their network management practices


Most carriers do not much like any of these principles. Carriers are, in the terminology of Internet researcher Tim Wu, "deregulationists".  As such, they tend to believe that the networks belong to them and that they should be able to do what they want with them, including blocking the next Google unless the carrier is paid an extra fee to make sure the data is properly delivered.


The FCC chair is, in Wu's terminology, an "openist" -- someone who thinks the network operator should not be in the business of picking winners and losers.


As one might expect, as soon as Genachowski made his announcement, and before anyone gets a chance to see the actual proposal, there have been a lot of reactions. Wireless carriers and cable companies, which would pick up regulations, were not happy. Nor were some politicians who announced efforts to block the rules before they could know what the rules might say.


I'm not going to fall into that trap. I'm not that much a fan of government regulations -- I would be against the FCC telling carriers what technology they must use. But I do think that putting limits on a carrier's ability to unfairly muck with their customers' data and requiring the carriers to tell customers what the carrier is doing is a good idea. That said, I've watched Washington, D.C., long enough to not assume that anything positive will be the result of the upcoming effort.


Disclaimer: I've watched Harvard for long enough to know the same is true there, but there is no university opinion on the not-yet-existent rulemaking proposal, so the above non-opinion is mine alone.

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