New net neutrality proposal: What’s in this thing?

FCC chairman outlined many principles aimed at pleasing everyone, but details remain scarce

Julius Genachowski’s grand unveiling of his new net neutrality proposal was long on broad principles, short on details.

Julius Genachowski’s grand unveiling of his new net neutrality proposal yesterday was long on broad principles, short on details.The Federal Communications Commission chairman tried to include something for everyone in the net neutrality debate, but he didn’t go into detail about how he would reconcile the two sides’ differences. The most glaring example of this was Genachowski’s assertion that his proposal “is grounded in a variety of provisions of the communications laws, but would not reclassify broadband as a Title II telecommunications service.”

The problem with this is that for meaningful net neutrality regulations to be enforced, the FCC would almost certainly have to reclassify broadband as a telecommunications service. That’s because the Washington, D.C. appeals court ruled this past spring that the FCC did not have the authority to regulate ISP network management under its current legal framework. This left the FCC with two options: It could either wait on Congress to act on net neutrality legislation or it could change the classification of broadband services from information services to telecommunications services, thus giving them the authority to impose some common carrier rules on ISPs.

How the FCC could still move on net neutrality

Genachowski had initially come out in favor of reclassification that would exempt ISPs from the majority of common carrier regulations that were traditionally applied to wireline telephone companies. However, Genachowski's plan ran into a torrent of industry and congressional opposition and many began looking toward Congress for solutions. Genachowski yesterday did not say how he planned to square this particular circle and would only say that he was “satisfied that we have a sound legal basis for this approach.”

Genachowski was similarly vague on how the FCC would regulate the mobile broadband industry. He acknowledged wireless carriers’ argument that fixed and mobile broadband networks can’t be regulated in the same manner because they’re fundamentally different. But the chairman did not take an entirely hands-off approach to wireless, as he said that the proposal would require wireless carriers to disclose their network and traffic management practices to customers and to follow a “basic no blocking rule.” He also said that the FCC would “closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive and anti-consumer conduct as appropriate.”

For its part, the wireless industry trade group CTIA sounded words of cautious encouragement about the chairman’s remarks and said it was glad that Genachowski had decided against reclassifying broadband as a telecommunications service. CTIA was also happy to hear him acknowledge the fundamental differences between managing wireless and wireline networks. The group did say, however, that any new rules adopted for the wireless industry ought to be reviewed in two years’ time.

Genachowski was slightly more specific on what his proposed rules for network management would look like. He granted that ISPs needed “meaningful flexibility to manage their networks, for example, to deal with traffic that’s harmful to the network or unwanted by users, and to address the effects of congestion.” The trickiest part of this has always been how to deal with network congestion as Comcast faced a public relations backlash back in 2008 when it was found throttling the peer-to-peer file-sharing application BitTorrent. While Genachowski said he opposed giving ISPs the power to slow down websites or applications that used a lot of bandwidth, he did say that he was open to usage-based pricing that would charge users more if they exceeded a certain amount of bandwidth consumption.

“Reasonable network management is an important part of the proposal, recognizing that what is reasonable will take account of the network technology and architecture involved,” he said. “Our work has also demonstrated the importance of business innovation to promote network investment and efficient use of networks, including measures to match price to cost such as usage-based pricing.”

But even though Genachowski gave some hints as to what his final proposal would look like, he left so much out of his talk yesterday that we’ll have to likely wait until the final version comes out during its scheduled meeting on December 21. But no matter what the final proposal looks like, it likely won’t get the vote of Republican commissioner Robert McDowell, who not only opposes the measure but has also accused Genachowski of “pushing a small group of hand-picked industry players toward a ‘choice’ that smacks more of coercion than consensus or compromise.”

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