The Federal Communications Commission (FCC) unveiled this week new draft principles for the regulation of broadband Internet providers, while Arizona Sen. John McCain introduced legislation that would prohibit such regulation.
The FCC commission voted to pass the new draft of rulemaking, which adds principles of nondiscrimination and transparency to the four principles the commission released in 2005. Three commissioners voted for the new draft, while two voted "dissent in part/concur in part." Final rules on net neutrality could arrive by summer.
Broadband providers must be transparent about their network management practices, which should foster private resolution of disputes and reduce the need for government enforcement.
FCC Chairman Julius Genachowski said the goal is to provide a framework in which "all participants in the Internet ecosystem can operate, ultimately minimizing the need for government involvement.
"That is why I have emphasized the new sixth principle -- the idea that broadband providers must be transparent about their network management practices, which should foster private resolution of disputes and reduce the need for government enforcement."
The four original principles state that under the draft rules a provider of broadband Internet access service may not:
- Prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;
- Prevent any of its users from running the lawful applications or using the lawful services of the user's choice;
- Prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network;
- Deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers and content providers.
About the Internet Freedom Preservation Act
The Internet Freedom Preservation Act of 2009 requires Internet service providers to:
- Not block, interfere with, discriminate against, impair or degrade the ability of any person to use an Internet access service;
- Not impose certain charges on any Internet content, service or application provider;
- Not prevent or obstruct a user from attaching or using any lawful device in conjunction with such service, provided the device does not harm the provider's network;
- Offer Internet access service to any requesting person;
- Not provide or sell to any content, application or service provider any offering that prioritizes traffic over that of other such providers; and
- Not install or use network features, functions or capabilities that impede or hinder compliance with these duties.
- It also requires the FCC to:
- Promulgate rules to ensure that an Internet access service provider does not require a consumer, as a condition on the purchase of any Internet access service, to purchase any other service or offering; and
- Take certain actions, including regarding private transmission capacity services.
The two new draft rules would codify additional principles as follows:
- A provider of broadband Internet access service must, subject to reasonable network management, treat lawful content, applications and services in a nondiscriminatory manner.
- A provider of broadband Internet access service must, subject to reasonable network management, 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.
FCC Commissioner Robert McDowell expressed skepticism about the notice of rulemaking, voting "partially dissent, partially concur." He noted that he is "not convinced that the Internet is broken and the government is the tool to fix it," and was uncertain that there was evidence of market failure on a broad scale.
FCC Commissioner Meredith Attwell Baker said, "We must find ways to ensure innovation and investment from end to end, not just at the core. We should not introduce regulation over anecdotes. I want fact-based evidence that problems exist." That said, she added, "it is reasonable to take a step back and ask tough and probing questions about the Internet today."
Those questions will also be asked in the U.S. Senate, where, at the same time that the FCC issued its draft rules for net neutrality, McCain introduced The Internet Freedom Act of 2009, which would prohibit the FCC from enacting Internet regulation rules.
The legislation has a markedly similar title to the Internet Freedom Preservation Act of 2009 introduced by Rep. Edward Markey (D-Mass.), which would enact net neutrality legislation. (See sidebar).
The FCC also announced the development of a Technical Advisory Process, a panel of engineers to help the commission stay informed on engineering principles. The process will be critical in addressing the key phrase that pops up throughout the draft rules: "reasonable network management." According to the FCC, "reasonable network management practices employed by a provider of broadband Internet access" include those used to:
- Reduce or mitigate the effects of congestion on its network or to address quality of service concerns.
- Address traffic that is unwanted by users or harmful.
- Prevent the transfer of unlawful content, such as child pornography.
- Prevent the unlawful transfer of content, such as copyright infringement.
The FCC also stated that "Internet Protocol-based offerings" -- which it called managed or specialized services -- would be subject to different consideration in terms of regulation. They would include voice, subscription video services, business services and specialized services like telemedicine, smart grid or e-learning.
More on the government and compliance
In other words, there could be some holes in how net neutrality will be applied, depending on the services or content being delivered over a network. As a result, Internet service providers could point to the practices as justification for traffic pumping or shaping. When asked about the hole, Genachowski said those concerns "will be part of discussion and creation of rules."
How will the FCC decide what's reasonable? "There's a myth about what we're looking at," he said. "The issue is how do we codify a framework so that all the players in the framework understand the rules of the road."