title:

Legally arrived at principles for ISPs?

By: Scott Bradner

About a year ago I lamented that the FCC supported neutrality on the Internet. (http://www.networkworld.com/columnists/2008/080508-bradner.html) The lament was not that I thought that carriers should be able to treat their customer's traffic unfairly. Instead it was that the FCC had acted without proper authority. The issue of a lack of authority may be about to be fixed. 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 FCC's Internet Policy Statement (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf). The policy statement includes four principles that should be met by Internet service providers 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, the cannot have the force of law since the FCC never adopted them through the rulemaking 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. The informal nature of these principles may be about to change. FCC Chairman Julius Genachowski announced in a September 21st speech (http://www.openinternet.gov/read-speech.html) that the FCC would begin a formal rulemaking process to adopt the four principles, plus two additional ones, at their meeting in October. He also said that the principles should apply to all types of Internet service, not just to telephone companies.

The four original principles include:

o consumers are entitled to access the lawful Internet content of

their choice

o consumers are entitled to run applications and use services of their

choice, subject to the needs of law enforcement

o consumers are entitled to connect their choice of legal devices that

do not harm the network

o consumers are entitled to competition among network providers,

application and service providers, and content providers

The two new principles are:

o broadband provides cannot discriminate against particular Internet content or applications

o 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. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=557330#PaperDownload) 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 Mr. Wu's terminology, an Openist -- someone that thinks the network operator should not be in the business of picking winners and loosers.

As one might expect, as soon as Chairman 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, who 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 customer's data and requiring the carriers to tell their customers what the carrier is doing is a good idea. That said, I've watched Washington 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.