Long-frustrated network neutrality advocates headed into 2009 with high hopes. After all, there was a new administration headed by a man whose campaign promises included the assurance that he would “take a back seat to no one” on the issue, a decidedly Democratic Congress and a general warming to the idea that unfettered access to content and applications on the Internet was somehow essential to the new economy and the sacrosanct rights of the First Amendment.
In many ways, they weren’t disappointed.
But the gears in Washington turn slowly, and, for all the talk and proposals, 2009 saw little material action on the Net neutrality front. Next year will be different.
In the first half of 2010, likely spring, the Federal Communications Commission is expected to vote on a notice of proposed rulemaking (NPRM) that, if approved, would represent the firmest action the federal government has yet taken on Net neutrality.
Specifically, the FCC would enshrine the four open Internet principles laid out in a 2005 policy statement as binding rules. It would also set two additional mandates, one requiring ISPs to “treat lawful content, applications, and services in a nondiscriminatory manner,” and another framed around transparency, stipulating they disclose certain information about how traffic passes across their networks.
When FCC Chairman Julius Genachowski announced his intention to move ahead with the network neutrality proceeding in a September speech at the Democrat-friendly Brookings Institution, the backlash was swift and furious. For all the left-leaning consumer groups that praised the move, their free-market counterparts would shout back that it was an appalling government incursion into a sector of the economy that had flourished with minimal regulatory oversight, a solution in search of a problem, or worse.
And all that came in response to a notice of proposed rulemaking. Once the commission nears the vote to approve the rules, expect that chorus to reemerge with all of its noisy vigor and apocalyptic warnings.
The vote of approval seems a foregone conclusion. The FCC has five commissioners, and a simple majority is needed to pass an order. The three Democrats are already on record in support of Net neutrality rules.
The two Republicans both cast votes of partial approval when the commission adopted the NPRM in October, but they remain philosophically opposed to blanket government oversight of the transmission of Internet traffic. Their tepid support in October was directed at the fact-finding mission which the action that day set in motion. They did not then, nor do they now, support binding network neutrality rules, and they can be expected to oppose the measure when it comes up for a vote next year.
They aren’t the only ones. Very little happens in Washington that doesn’t drag the lawyers into the scene, and Net neutrality is no exception.
Chatting recently about the legal issues in the network neutrality saga with Larry Spiwak, president of the Phoenix Center, a Washington think tank focused on telecom policy, InternetNews.com asked whom he thought would be likely to challenge an FCC ruling in court.
“Whoever can get to the courthouse first,” he said with some seriousness.
Major cable and telecom companies generally oppose the push to set boundaries for how they conduct themselves, so expect the big names to set their attorneys in motion.
Another likely candidate is CTIA, the trade association representing the wireless industry. Genachowski added a new wrinkle to the Net neutrality debate when he announced his plan to enact rules that would apply not only to the cable and wireline sectors — the traditional subject of the discussion — but also to wireless carriers, which, thanks to the smartphone revolution, are becoming an integral part of the Internet ecosystem.
CTIA counters that wireless is different, that the companies it represents don’t have the capacity to absorb a nondiscrimination rule for Internet transmissions while still ensuring that voice calls can get through.
While no one is going to guarantee litigation before the rules are even ratified, the group’s executives have made it clear that heading into 2010, network neutrality is enemy No. 1 on their policy agenda. It’s also worth remembering that CTIA was the last group to drop its lawsuit seeking to remove the open access provisions the FCC established in the 2008 wireless spectrum auction.
“Reasonable” network management
But if Net neutrality opponents will look to block the commission from setting any form of binding rules, some advocates worry that it won’t go far enough. The FCC acknowledges that congestion ebbs and flows, and that ISPs need to be afforded the ability to manage the traffic to ensure an overall quality of service across the network. The NPRM offers ISPs the assurance that nothing in the order will prohibit “reasonable network management,” the operative term in the debate.
But here’s how the NPRM (available in a PDF here) defines it:
“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.”
That last part seems dangerously open-ended to some, like Public Knowledge Legal Director Harold Feld, who noted recently that the NPRM “defines ‘reasonable’ as ‘reasonable.'”
The concern is that such a definition will fuel the uncertainty that the FCC intends to dispel by drawing brightline rules. In the NPRM, the commission said it would address Net neutrality infractions on a case-by-case basis, saying that “individual adjudications will principally involve resolution of complaints about broadband Internet access service providers’ specific practices,” and that network operators would not be required to obtain approval before implementing a new technology or technique for managing their networks.
A running subplot to this year’s fight over network neutrality will begin playing out in the courts in short order. On Jan. 8, a federal appeals court in Washington is set to begin hearing oral arguments in Comcast’s challenge to the FCC’s authority to enforce its Internet policy statement.
That challenge stems from the action the commission took in August 2008 to rebuke the cable giant for secretly throttling legal peer-to-peer transmissions, citing the same policy statement that the FCC is now looking to codify as binding rules.
Critics have accused Genachowski of talking out of both sides of his mouth on the matter of FCC authority. He has said that he believes the FCC took the appropriate action in the Comcast case, yet he now says the commission doesn’t have the necessary authority to ensure a free and open Internet. The chairman defends his move by arguing that upgrading the policy statement to enforceable rules would remove the uncertainty about the commission’s legal authority that is now being challenged in court.
Playing out the scenarios, some analysts have speculated that if a court were to uphold Comcast’s challenge, that could build political momentum in Congress to take up Net neutrality.
The prospects for movement on the issue on the Hill in 2010 seem dim, particularly in light of all the action at the FCC. Although, as with the advocacy community, the move to enact Net neutrality rules at the commission will touch of a flurry of comments from the lawmakers who concern themselves with technology issues, and could see some efforts from outraged Republicans to seek reprisal against the FCC.
Sen. John McCain (R-Ariz.), for instance, has introduced a bill that would bar the commission from regulating ISPs’ network practices. The bill won’t move, but it will serve as a talking point. (And the butt of a new wave of jokes from the Net neutrality set — after all, it was McCain who, when asked if he favored a Mac or a PC, famously answered, “Neither, I am an illiterate that has to rely on my wife for all of the assistance I can get.”)
More modestly, Kay Bailey Hutchison (R-Texas) in the fall introduced an amendment to the Interior appropriations bill that would freeze the FCC’s budget if it pressed ahead with network neutrality rules. After some meetings between her staffers and the commission, she withdrew the amendment, but an aide told InternetNews.com that it’s still very much on the table.