Saying the FCC must be a "smart cop on the beat preserving a free and open Internet," FCC Chairman Julius Genachowski Monday proposed adding two new Internet access principles to the existing four, and will begin the process of codifying all of them with a Notice of Proposed Rulemaking at the FCC's October meeting.
He said the move was necessary because there had already been evidence of "deviations" from historic openness, because there were incentives for that inherent in rational-bottom line competition between players, and because there was not enough of that competition in Internet service.
The new principles, which he wants to make into enforceable rules, would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for "reasonable network management." The devil will be in the details of what qualifies as that reasonable management. The second new principle would require ISPs to be open with customers about what network management practices they do employ.
It would also clarify that the rules apply to wireless as well as wireline carriers. The chairman has already signaled that he thinks the future of broadband is increasingly going to be wireless.
The chairman has the votes to push forward his proposals.
Former FCC acting Chairman Michael Copps has long advocated for the fifth principle and for transparency, as well as codifying the rules. "The FCC's Statement of Four Internet Principles that we won in 2005 was the initial down-payment toward that objective," said Copps in a statement. "Chairman Genachowski's bold announcement today is a significant further investment in safeguarding Internet Freedom. I salute him for it."
The other FCC Commissioner, Mignon Clyburn, threw her support behind the effort. "I fully support Chairman Genachowski's intention to take affirmative measures to preserve the openness of the Internet," she said in a statement. "The chairman's statement today is an important first step in setting forth clear rules of the road that will ensure the Internet's continued vibrancy. As a former small business owner, I am keenly aware of how an open and transparent Internet can serve as an equalizing force for new entrants to the marketplace. I look forward to working with the chairman and my fellow commissioners to move expeditiously on this issue of great importance to the country."
The current four network openness principles, adopted when the commission ruled that Internet service was not subject to mandatory access provisions, were that "consumers must be able to access the lawful Internet content, applications, and services of their choice," and be able to attach "non-harmful devices to the network."
In keeping with the Genachowski FCC's emphasis on public participation, the FCC also launched a new Web site Monday to solicit public input.
The chairman's speech outlines his reasoning for wanting to expand on and codify Internet protections, though without naming any names.
"Notwithstanding its unparalleled record of success, today the free and open Internet faces emerging and substantial challenges," he said. "We've already seen some clear examples of deviations from the Internet's historic openness. We have witnessed certain broadband providers unilaterally block access to VoIP applications (phone calls delivered over data networks) and implement technical measures that degrade the performance of peer-to-peer software distributing lawful content. We have even seen at least one service provider deny users access to political content. And as many members of the Internet community and key Congressional leaders have noted, there are compelling reasons to be concerned about the future of openness."
Comcast became the poster company after an FCC finding against its network management techniques vis a vis peer-to-peer traffic. The company is fighting that decision in court.
But the chairman went out of his way not to try to personalize the issue or make it about good and bad actors.
"[The] debate, as I see it, isn't about white hats or black hats among companies in and around the network. Rather, there are inevitable tensions built into our system; important and difficult questions that we have an obligation to ask and to answer correctly for our country."
He said his new policy would be driven by "limited competition" among service providers, which he said was a fact, not a policy conclusion or criticism.
He also said that there was a built-in, "rational bottom-line" incentive for "diverg[ing] from the broad interests of consumers in competition and choice" by competing broadband service providers.
A third reason, he said, was the increasing traffic on the Internet, which has prompted more and more sophisticated network management techniques.
The chairman said that the principles would not prevent network management of heavy traffic, or from protecting from spam, or from protecting copyrighted material. "As I said in my Senate confirmation hearing, open Internet principles apply only to lawful content, services and applications -- not to activities like unlawful distribution of copyrighted works," he said.
He said the proposal was not government regulation of the Internet, but "fair rules of the road" which the FCC would still enforce on a case-by-case basis.
"This is not about protecting the Internet against imaginary dangers," he said "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."
Network neutrality backer Media Access Project praised the move:
"The FCC's move to adopt rules requiring non-discrimination would be a tremendous step towards ensuring an open and fair Internet," said Associate Director Matt Wood. "Reports that the commission's net neutrality principles will be applied to wireless as well as wireline broadband platforms signal the Commission's commitment to preserving freedom of expression for all Internet users."
The American Cable Association was quick to ask the commission to look into the issue of Web companies using their leverage to get preferential treatment for their services ISP networks.
"If the FCC moves forward with its rulemaking," said ACA President Matt Polka, "ACA urges the commission to ensure that broadband content providers are similarly prevented from imposing closed Internet business models that are even more problematic today than the concerns raised about the ability of broadband access providers to distort various forms of Internet commerce and competition."