FCC Gets an Earful on Network Neutrality Rules

Google, Verizon search for common ground as comments pour in looking to shape federal Internet policy.

By Kenneth Corbin | Posted Jan 15, 2010
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Comments came pouring in to the Federal Communications Commission fast and furious this week, as Internet companies, telecom providers and a parade of advocacy groups, industry associations and other interested parties offered their free advice as the commission mulls a landmark move to regulate ISPs.

The issue at hand is a notice of proposed rulemaking that seeks to clarify the FCC's authority over the way ISPs manage traffic on their networks, setting binding rules against blocking or discriminating against content on the Web.

Many of the nearly 22,000 comments, filed to meet the Thursday deadline, reiterated the same arguments that have carved out the borders in the long-simmering network neutrality debate.

Supporters warn that ISPs, if left unchecked, will seek to impose a toll system on their networks, striking side deals with content and application providers to provide swift transmission of their traffic in exchange for a fee. Opponents, meanwhile, argue that the Internet has thrived under a deregulated model, and efforts to preserve that openness are best served by maintaining the current framework rather than imposing new regulations that could undermine the incentives for providers to invest in their networks.

AT&T (NYSE: T), a historic opponent of network neutrality rules, included in its filing a paper by network experts Gerald Faulhaber and David Farber that described the FCC's proposed rulemaking the "most significant reach of regulatory power to the Internet in U.S. history."

But net neutrality proponents take a different view, arguing that the general openness was the law of the land until a 2005 U.S. Supreme Court ruling that rolled back the FCC's regulatory authority over broadband Internet providers.

In addition to the litany of consumer advocacy groups that have long campaigned for network neutrality rules, Google (NASDAQ: GOOG) has emerged as perhaps the most vocal supporter of the policy in the Internet sector.

"In our comments filed today in the FCC's proposed rulemaking docket, we explained that our goal is straightforward: 'to keep the Internet awesome for everybody,'" Google telecom and media counsel Rick Whitt wrote Thursday in a blog post.

Then in a modest show of solidarity with the opposition, Google submitted with Verizon a joint set of comments expressing common support for some of the commission's broader -- and least controversial -- goals, such as the importance of openness, innovation and investment in the Internet ecosystem. They companies also advised the commission to generally apply a light-touch regulatory approach, only taking action against "bad actors" on a case-by-case basis.

They also encouraged the FCC to form a technical advisory group to help mediate disputes, and reminded the FCC of the importance of affording providers the flexibility to manage their networks to ensure an overall quality of service, while being able to block illegal or malicious traffic.

That mild consensus revisited the joint blog post penned by the CEOs of Google and Verizon Wireless on the eve of the FCC's vote to initiate the rulemaking process in October.

In both instances, the companies tried to show common ground between two camps that are generally perceived as at odds with one another in the net neutrality debate. But at the same time, they acknowledged that there are some significant areas in which they disagree.

In its far longer individual filing with the FCC, representing both Verizon (NYSE: VZ) and its wireless subsidiary Verizon Wireless, a joint venture with Vodafone (NYSE: VOD), the telecom giant argued vehemently against "prescriptive rules," particularly in the wireless sector, which would also be included in the proposal.

Verizon also included a lengthy legal analysis, arguing that the FCC does not have the statutory authority to regulate ISPs and that any effort to do so would invite a challenge on constitutional grounds, outlining the issues that will reemerge in the all-but-certain litigation that would follow the enactment of the rulemaking.

In the meantime, the FCC is already tied up in a similar challenge to its authority from another long-time opponent of net neutrality rules. Comcast, which submitted its own set of comments arguing against the rulemaking, is challenging the action the FCC took against it in 2008, after determining that the cable giant had been secretively blocking peer-to-peer traffic on its network.

Comcast (NASDAQ: CMCSA) enjoyed a favorable hearing before a federal appeals court last week, when it argued that the FCC didn't have the authority to enforce an Internet policy statement, the same set of principles that it is now seeking to enshrine as a binding set of rules. But Comcast's broader argument in that case, which is echoed in a litany of comments submitted this week by cable and telecom providers and their supporters, is that the FCC would be acting beyond the scope of its authority even by trying to set net neutrality rules, essentially putting ISPs outside the regulatory purview of the commission.

If the court agrees with Comcast's more vigorous argument against FCC authority in its ruling, the current net neutrality proceeding could unravel.

The FCC is accepting reply comments through March 4, after which the rulemaking would normally come up for a vote at the FCC's monthly meeting.

However, a source at the FCC told InternetNews.com that with no way of knowing when the court will issue its ruling, the timing of the net neutrality rulemaking vote is still up in the air.

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.

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