December 8, 2010 | By corynne mcsherry

Chairman Genachowski’s Next Net Neutrality Proposal: What to Watch For

EFF has been monitoring the net neutrality debate with an eye to two main concerns, both stemming from our conviction that however laudable the goal of neutrality--and it is a laudable goal--the regulatory and legislative paths that get us there must not amount to a “Trojan horse” that we’ll all regret:

First, we have a well-founded fear of an open-ended grant of authority to the FCC to regulate the Internet, and attendant worries, especially about regulations that could create barriers to entry for the next generation of garage innovators.

Second, the devil will be in the details, especially exceptions and loopholes for non-neutral behavior that may be so broad they undo much of the regulation’s purpose. An example of this is the FCC’s last proposal, which would have allowed the very discrimination that Comcast was accused of engaging in with BitTorrent as long as Comcast claimed it was doing it to prevent the circulation of “illegal” materials (i.e., copyright infringement).

Our concerns resurfaced last week, when FCC Chairman Julius Genachowski revealed that he has a new proposal for regulating broadband Internet service that will be voted on at the FCC’s December 21 meeting. We haven’t seen the document yet—it’s still confidential, which itself doesn’t bode well. But it seems that the Commission will employ essentially the same arguments it relied on—unsuccessfully—in 2008 to claim authority to discipline Comcast for throttling subscribers’ BitTorrent traffic. Having already once rejected this premise, the courts are not likely to change their mind the second time around even if the arguments are slightly different. That means the whole undertaking may be a fruitless exercise that lets Chairman Genachowski and others claim to have done “something” on net neutrality without actually accomplishing very much.

For this and other reasons, the details will be crucial. Here’s what EFF will be looking for when the actual proposal is made public.

Jurisdiction

  • What is the basis for the FCC’s authority, and is there a reasonable limiting principle to it? Is the basis on which the FCC is claiming it can regulate one that has real limits for future decisions, either directly or indirectly? Put another way, if we say the FCC has the authority to do the things we support this time, are we undercutting our ability later to claim that it doesn’t have the jurisdiction to do things that we oppose?
  • Does the FCC’s jurisdictional claim encompass the content layer? Software applications, content and services should remain outside FCC jurisdiction. Network neutrality is about network service providers and the concern that they will act as discriminatory gatekeepers to their customers. Applications just don’t have this kind of gatekeeper role.

Loopholes and Exemptions

  • Are there loopholes in neutrality aimed at appeasing the content industry and law enforcement? The last time around, the FCC’s proposal would have allowed discrimination for “unlawful” content. This time, are the proposed regulatory requirements similarly limited? Are relevant terms defined, and are the arbiters of a term’s meaning identified? Allowing discrimination for vague categories of content invites law enforcement and entertainment industry efforts that threaten free speech and innovation, and gives ISPs an excuse to traffic-discriminate for commercial gain in the guise of targeting unlawful behavior.
  • Does the proposal cabin the “reasonable network management” exemption? Does it carefully define or set up an objective process to define “reasonable network management” so that it is neutral and cannot become the exception that swallows the rule for network service providers?
  • Does the proposal prevent “managed services” or “additional online services” from making the public Internet obsolete? “Managed services” refers to the sorts of things that many people believe should be protected from the wide open Internet—things like dedicated health systems or emergency systems. If the proposal allows non-neutral behavior by service providers for these services, does it do so in a way that will prevent the network service providers from simply categorizing all exciting, new things as managed services while leaving the open Internet to wither?
  • Exemptions for wireless. Does the proposal create different, narrower frameworks for wireless than for wireline? Earlier proposals have excluded wireless from all but transparency requirements, and we think that’s a bad idea. The need and desire to have your service neutral doesn’t and shouldn’t change when you move from a wired to a wireless connection.

That’s our starter list. We’ll also be keeping an eye out for language introduced or changed in this version of the proposed regulations that may raise additional cause for concern or celebration. Net neutrality is a hard problem, and deciding whether the FCC’s latest gambit is a good or bad thing for Internet users, innovation and overall network growth will require looking past the slogans to the nitty gritty of what is being proposed.


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