A Neutral Net Means Battles

FCC chairman Julius Genachowski launched a new proceeding designed to fetter Internet service providers' ability to restrict content. And they would apply equally to wired and wireless connections.


FCC chairman Julius Genachowski made his pitch this morning for network neutrality, and he did it in the most business-friendly language he could muster. But that didn't stop him from arguing that an open Internet must be the rule no matter how one gets on it—wired and wireless connections should both be nondiscriminatory towards content and applications.

Genachowski delivered a major address this morning at the Brookings Institution in Washington, laying out his vision of an open Internet and rehashing the many ways that an open Internet is a spur to innovation of all kinds.

Today, Internet access suffers from three problems, he said. First is the limited competition among Internet service providers, which is "simply a fact about today's marketplace." Second is the perverse economic incentives faced by the major U.S. ISPs, which also sell separate phone and TV service to the same customers who buy Internet access (and can increasingly access such services over the Web). Finally, the growth of Internet traffic can put pressure on ISPs.

The resulting situation isn't about "bad guys" versus "good guys," but about the "inevitable tensions built into our system." That system has already led to ISP blocking of VoIP, degradation of P2P connections, and even a denial of access to certain political content (all examples cited by Genachoswki).

To preserve the Internet's unique innovation engine, where the intelligence exists at the edges and where entrepreneurs don't need permission to build the next Skype or Google, Genachowski promises a fair proceeding that is driven by data and that listens to everyone. But when it's over, he wants the FCC to add two new principles to its existing "four freedoms": nondiscrimination and transparency.

The nondiscrimination principle says that ISPs can't "discriminate against particular Internet content or applications," which means that traffic-throttling of particular apps and protocols would be forbidden, even in cases where an ISP does not block access entirely.

The transparency principle states that ISPs must inform subscribers about their network-management practices. "Why does the FCC need to adopt this principle?" Genachowski asked. "The Internet evolved through open standards. It was conceived as a tool whose user manual would be free and available to all. But new network-management practices and technologies challenge this original understanding. Today, broadband providers have the technical ability to change how the Internet works for millions of users—with profound consequences for those users and content, application, and service providers around the world."

The canonical example, of course, was Comcast's degradation of BitTorrent, which came to light in 2008. The cable ISP used TCP reset packets to disrupt certain P2P connections, changing the purpose and use of reset packets unilaterally.

But when that Comcast case was finally ruled on by the FCC and the company was told to stop its practice, a dispute erupted: Did the FCC even have the authority to act on its "four freedoms"? Those Internet freedoms were explicitly not rules, and Comcast has since gone to court over the issue. Genachowski wants to make all six of his proposed Internet principles into official agency rules to make clear to ISPs exactly what's required of them, and to make sure the FCC has the authority to act if problems arise.

As his speech neared its end, Genachowski turned to the most common criticisms of the plan—that it amounts to "government regulation of the Internet," that it's largely based on overheated conspiracy theories that exist only in the minds of groups like Free Press, and that it's antibusiness and therefore (in the long run) anticonsumer as well.

“This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity, and entrepreneurial activity.

“This is not about protecting the Internet against imaginary dangers. We’re seeing the breaks and cracks emerge, and they threaten to change the Internet’s fundamental architecture of openness. This would shrink opportunities for innovators, content creators, and small businesses around the country, and limit the full and free expression the Internet promises. This is about preserving and maintaining something profoundly successful and ensuring that it’s not distorted or undermined. If we wait too long to preserve a free and open Internet, it will be too late.
Defining Moments

Genachowski has picked his battle. The network neutrality fight will consume much of his energy as chairman and won't be resolved anytime soon, but if Genachowski gets his six broad rules and applies them to all forms of Internet access, he will leave a pretty serious stamp on the direction of the Internet in the U.S.

Google has come out in support of the idea, as have groups like Free Press. But Genachowski can't wave his magic "I was in business too!" wand and make resistance disappear. Wireless carriers, especially, despite a new commitment to openness on the part of Verizon Wireless and others, are worried.

Chris Guttman-McCabe, vice president of regulatory affairs for CTIA - The Wireless Association, expressed his concern "about the unintended consequences that Internet neutrality regulation would have on investments from the very industry that's helping to drive the U.S. economy. We believe that this kind of regulation is unnecessary in the competitive wireless space as it would prevent carriers from managing their networks—such as curtailing viruses and other harmful content—to the benefit of their consumers."

The Progress & Freedom Foundation upped the rhetorical ante with this pithy nugget from president Ken Ferree: "I find myself at a loss to understand why the administration wants to start meddling with a sector of the economy that, despite a challenging macroeconomic environment, is performing pretty well by any rational standard. What exactly is the problem they are trying to remedy? It's almost as if they are trying to turn a story of success into one of failure."

But, to Genachowski, the openness of the Internet has been the most crucial factor in its tremendous success, and he's ready to take on all comers in the battle that may define his time as head of the FCC.