[Infowarrior] - FCC proposes network neutrality rules (and big exemptions)

[Richard Forno]

FCC proposes network neutrality rules (and big exemptions)
http://arstechnica.com/tech-policy/news/2009/10/fcc-proposes-network-neutrality-rules-and-big-exemptions.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss

The FCC unveiled its six network neutrality rules today, along with a  
pair of gaping exceptions. But does the agency even have the authority  
to regulate the 'Net? The Republicans and the EFF both say no.

By Nate Anderson | Last updated October 22, 2009 11
As expected, the FCC laid out its draft network neutrality rules at an  
open meeting today. Despite the partial dissent of the two Republican  
commissioners, the pro-neutrality faction has won a major rhetorical  
battle; even its toughest opponents sing the praises of a "free and  
open Internet."

The draft rules are short, taking up less than two pages of text. At  
their heart are the four existing "Internet freedoms" that the FCC  
approved back in 2005:

	• 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
	• Consumers are entitled to competition among network providers,  
application and service providers, and content providers.
The proposed rules make the principles binding, but they also add two  
new items to the list: nondiscrimination and transparency.

	• A provider of broadband Internet access service must treat lawful  
content, applications, and services in a nondiscriminatory manner
	• A provider of broadband Internet access service must 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
Exceptional rules
Are there exceptions? Of course there are, and the ways that the  
exceptions are put into practice will have a significant effect on US  
network design.

First, all six principles are subject to "reasonable network  
management." No one's sure what that means, but the FCC staff have now  
developed guidance that is far more helpful than the previous  
(nonexistent) guidance.

Network management is reasonable if it is used

	• To manage congestion on networks
	• To address harmful traffic (viruses, spam)
	• To block unlawful content (child porn)
	• To block unlawful transfers of content (copyright infringement)
	• For "other reasonable network management practices"
The ambiguity of that last item is striking, and we'll have to see  
what sorts of things the FCC allows in practice before understanding  
just how wide this exemption really is.


The second exemption to the rules is for "managed services," another  
hazy area. FCC staff are defining managed services as offerings that  
are provided over the same networks as regular Internet access but  
that "differ from broadband Internet access service in ways that  
suggest a different policy approach." This includes things like voice  
services and telemedicine, but it's obviously a pretty broad category,  
and the FCC is asking for guidance on how to define it.

It appears that the agency is looking for ways to let telcos and cable  
companies offer additional, prioritized services over a single line,  
things like analog and digital voice, cable TV, and low-latency  
connections for medical use.

The rules apply to every Internet connection, wired and wireless,  
though what is "reasonable" may vary by connection type and even by  
network speed. As Commissioner Michael Copps put it in his supporting  
remarks, "What is reasonable today might be unreasonable tomorrow—and  
vice versa" as networks expand.

There's nothing new here?
Chairman Genachowski pitched the move as evolutionary rather than  
revolutionary, noting that the FCC in the past (and under Republican  
leadership) had already adopted the four Internet principles, slapped  
network neutrality conditions on the AT&T/BellSouth merger, and made  
the decision to sanction Comcast.

And while he's willing to listen to everyone, people should know that  
"'anything goes' is not a serious argument" at the Genachowski-led  
FCC. He argued that proper rules are a spur to investment, not a  
barrier, and says that he remains fully aware of "the risk of  
unintended consequences." Hence, the rules are meant to be brief, and  
to be general, with several big exemptions so as not to bind the  
agency's hands in the future.

The three Democratic commissioners also called out the scariest  
rhetoric surrounding network neutrality rules. Mignon Clyburn singled  
out the parties that prefer "radioactive rhetoric" and said it might  
yield headlines but not good results with her. Copps bashed the  
"Chicken Littles running around proclaiming the sky's falling" and  
called for facts, not fear.

Even those who opposed the rules were limited in their criticism; both  
Robert McDowell and Meredith Baker applauded the process so far and  
the idea of the open Internet. Comcast's statement opened the same  
way: "We share and embrace the objective of an open Internet, as we  
always have." The cable lobby agrees, telling Ars, "To be clear, we  
regard this as a debate about means, not ends; we support a free and  
open Internet."

Everyone loves openness, but the two Republican commissioners worry  
that FCC rules aren't the way to get there, and both claim that the  
agency did not have the authority to make such rules.

In an odd twist, the Electronic Frontier Foundation agrees. Despite  
supporting neutrality, the group argues that "Congress has never given  
the FCC any authority to regulate the Internet for the purpose of  
ensuring net neutrality." (This is the basic argument being made now  
in federal court by Comcast.)

The danger is that such authority over the Internet might today be  
used for good, but "it could just as easily be invoked tomorrow for  
any other Internet regulation that the FCC dreams up (including things  
we won’t like). For example, it doesn't take much imagination to  
envision a future FCC 'Internet Decency Statement'… And it's also too  
easy to imagine an FCC 'Internet Lawful Use Policy,' created at the  
behest of the same entertainment lobby that has long been pressing the  
FCC to impose DRM on TV and radio, with ISPs required or encouraged to  
filter or otherwise monitor their users to ensure compliance."

But Genachowski is pushing ahead. Comments on the draft rules are due  
in January 2010, with reply comments due in March 2010; final rules  
could arrive by next summer.

Whatever one thinks of the draft rules, it remains encouraging to see  
the FCC doing things the "right way." Under predecessor Kevin Martin,  
a "Notice of Proposed Rulemaking" might be issued without containing  
the actual draft text of the rule—a fact that several commissioners  
noted. And Genachowski has the FCC blogging (even liveblogging the  
meeting), is overhauling the agency website, and has ditched the  
horrible RealPlayer streaming setup in favor of Flash video that  
actually works the first time.