FCC Publishes Notice of Rulemaking on Net Neutrality

The Federal Communications Commission released its Draft Rules to Preserve the Free and Open Internet today, making good on Chair Julius Genachowski's  earlier threat or promise, depending on the side one takes on the issue.  Senator John McCain introduced The Internet Freedom Act of 2009 which would prohibit the FCC from making rules regulating the Internet.  McCain's press release oddly cites Google and Yahoo recently releasing positive earnings reports as one justification for keeping government from regulating the Internet.  It is ironic that both companies support net neutrality rules as a way of keeping and growing those profits, so the joke is on McCain in one sense. 

Congressman Ed Markey has already introduced a different bill that would empower the FCC to write these rules, just in case there is doubt in their power to do so.  What will finally be enacted will likely be driven by the pending court decision where the Commission slapped Comcast for lack of transparency in blocking P2P transmissions over its network.  Comcast complied with the order telling them to stop the practice but sued anyway over the Comission's underlying authority, or lack of it.  McCain's bill will probably not get enough traction with Democrats running the House and Senate.  Markey's bill might pass if momentum builds on a court decision against the FCC.  President Obama would likely sign legislation preserving net neutrality as he campaigned on the issue as for it.

The FCC Notice of Proposed Rulemaking restated the four principles of Internet governance that were stated in a footnote to one of its earlier policy statements and added the two mentioned by Genachowski in a speech earlier this year.  The summary of the proposed rules are essentially:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.

Genachowski would add these:

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

6. Subject to reasonable network management, 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 part.

Most of the opposition comes from companies that promote wireless access to the Internet, arguing that the wireless industry is rich, vibrant, and capitalized for innovation.  There is speculation that had the rules been limited to wired broadband there would still be grumbling, though not as much.  Companies such as Comcast, without a wireless alternative still object because they see rules as interfering with network management.  All of these potential regulatorees sighed a bit of relief as the Notice qualified the principles as subject to "reasonable network management."  What that consists of was deliberately defined vaguely so as not to straight jacket the Commission into a single technical strategy in the future.  Proposed CFR Title 47, Part 8, Section 8.3 reads

Reasonable network management consists of:
(a) reasonable practices employed by a provider of broadband Internet access service to:
(i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns;
(ii) address traffic that is unwanted by users or harmful;
(iii) prevent the transfer of unlawful content; or
(iv) prevent the unlawful transfer of content; and
(b) other reasonable network management practices.

There is room for content owners to work with broadband providers, should that relationship ever blossom, to limit transfer of unlawful content.  The RIAA, the MPAA, and other trade associations are probably happy with that to the extent it preserves their options on dealing with illegal file sharing.  Other parts of the proposed rules explicitly preserves cooperation of broadband provides with law enforcement agencies.  Compared to the possibilities of these rules could be written, they are the soul of brevity, most not longer than one sentence.

The Commission Notice is here.  Statements from each Commissioner are at the FCC web site.  [MG]