[Infowarrior] - Policing Net Neutrality

[Richard Forno]

Policing Net Neutrality

Enforcing the FCC's upcoming network-neutrality rules will be easier  
said than done

BY MITCHELL LAZARUS // NOVEMBER 2009
http://spectrum.ieee.org/telecom/internet/policing-net-neutrality?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+IeeeSpectrum+(IEEE+Spectrum)

The U.S. Federal Communications Commission wants its coming rules on  
network neutrality to revive the ”free and open” Internet of the 1990s.

Sorry, FCC. Those days are gone. Your rules won’t bring them back.

The early Internet was free and open for two main reasons. The  
Internet was (and still is) based on a flexible set of protocols that  
anyone can use. And access to the Internet was (but is no more)  
afforded by hundreds of competitive Internet service providers (ISPs).  
Back in the dial-up days, nobody talked about net neutrality—the  
concept that ISPs shouldn’t be able to block or slow particular  
Internet applications or uses. There was no need. An ISP that tampered  
with customers’ content would soon be gone.

ISP competition was itself the result of an FCC decision: the 1985  
Computer III order, which promised every ISP access to essential  
telephone network facilities. To be sure, some phone companies were  
slow to comply, and FCC enforcement was uneven. But at least the ISPs  
had the law on their side.

Not so for broadband. Starting in 2002, the FCC relieved broadband  
Internet providers of any obligation to open their facilities to other  
ISPs. Now most users have access to only one or two broadband  
providers, giving those companies a throttlehold over customers’  
content. It was the abuse of this power that led to the present calls  
for network neutrality.

Some of the problems arose because most broadband ISPs are also in the  
telephone or cable-TV business and are threatened by less expensive  
services available on the Internet. The ISP operation has both motive  
and means to protect the parent company’s interests. Recently, for  
example, cable ISP Comcast Corp. blocked content that might compete  
with its pay-per-view service, and wire-line phone company Madison  
River Communications Corp. blocked access to Vonage Holdings Corp., a  
provider of Voice over Internet Protocol. The FCC cited these  
instances, among others, in proposing the new rules.

Will those rules stop the abuses? Will they bring back the  
freewheeling, anything-goes atmosphere that fostered so much  
innovation back in the dial-up days?

Probably not.

For one thing, the proposed rules are worded very generally. Take this  
example: ”Subject to reasonable network management, a provider of  
broadband Internet access service must treat lawful content,  
applications, and services in a nondiscriminatory manner.” The needed  
specifics are completely missing. This is like a traffic sign that  
reads, ”Drive safely.” Extreme cases aside, pulled-over drivers can  
always insist that they obeyed the law—ISPs likewise.

Another problem is the FCC’s stated intent to consider claimed  
violations of the rules on a case-by-case basis. This can be  
exceedingly slow—and expensive to boot.

Flash forward a few years. The net-neutrality rules are in place. A  
smart programmer has come up with the next YouTube or Facebook or  
Twitter. Users flock to it by the millions. But the application  
threatens the business interests of a big cable-TV or phone company.  
Its affiliated ISP blocks subscribers from using the application.

But now there are rules against this sort of thing. Our innovator goes  
to the FCC. There he must demonstrate that the ISP violated the net- 
neutrality rules. The vague language of those rules leaves plenty of  
room for the ISP’s lawyers to argue otherwise. Assuming the innovator  
wins that point, further dispute is likely over what the ISP must do  
to stop discriminating—after which the ISP may appeal, first within  
the FCC and then in court.

Drawing up a complaint and fending off the ISP’s defenses could run  
well into five figures. Appeals could easily take the total into six- 
digit territory. A company like Comcast or Verizon Communications  
could absorb this kind of expense without blinking, but few  
entrepreneurs can. Even fewer Internet entrepreneurs could consider it.

Remember, the big innovations of the Internet came from college kids  
in dorm rooms, dropouts in their parents’ garages, start-ups working  
in bare offices. These are the people the FCC should protect. By  
contrast, the ISP defending its actions is likely to be a  
telecommunications giant with a standing army of blue-suited lawyers.

Maybe the FCC will do the legal lifting on the innovator’s behalf. I  
hope so, because the alternative would be to have a nice set of net- 
neutrality rules with no teeth.

Even if the FCC itself were to prosecute rule-breaking ISPs, the  
process would probably be slow. Expect a year or more for a first  
decision from the FCC; another year, at least, for an internal appeal;  
and two years in the courts. Most Internet entrepreneurs would likely  
run out of time and money in the meantime. And even if the innovator  
does manage to prevail, years down the road, odds are that by then the  
one-time killer app will have missed its chance to go viral.

The proposed rules will certainly help to keep the Internet safe for  
well-heeled content providers like Google. But unless the FCC makes  
the enforcement process fast and cheap—or can coerce the big ISPs into  
compliance, as I propose in a recent blog entry—it will do little for  
the creative community that developed the Internet from a nerdy  
plaything into the massive resource we all rely on today. Unless  
individuals have swift recourse against discrimination by an ISP, the  
heady days of Internet innovation will soon draw to a close.

About the Author

Mitchell Lazarus is a partner in the Washington, D.C., area law firm  
of Fletcher, Heald & Hildreth. He blogs regularly at  
www.commlawblog.com.