The Network Neutrality Debate Is far From Over

Recent FCC moves to regulate the Internet leaves Internet service providers wanting more control.

by / January 7, 2010

In the epic battle between giant corporations and pirates of digital media, the latter faction has struck a severe blow with the help of regulators at the FCC. Bureaucrats soon will pen regulations that will keep the Internet free forever from -- well, regulation. Meanwhile, Internet service providers (ISPs) like Comcast and AT&T will slink back to their caves to bemoan their inability to further mine profit from customers.

Such a description of the network neutrality debate is clearly a gross oversimplification of what's in reality a complex problem. If you listen to net neutrality advocates, ISPs are described as aspiring digital gatekeepers out to wring every last cent from innocent consumers. ISPs, on the other hand, have had a terrible time crafting a countermessage -- their best attempt has been claiming that they want only to reinvest profit into building more broadband.

Net neutrality is an important issue, as it may well determine the future of the Web. And with the FCC's October 2009 notice of proposed rulemaking regarding network neutrality regulation, it would seem the grass-roots activists have defeated their corporate adversaries. Although there aren't any written rules yet, some worry the federal government is claiming power it doesn't possess to regulate the Internet in a manner that's far worse than what Time Warner or AT&T would even consider.

Choose Your Master

The core of net neutrality is the notion that no one should be "in charge" of the Internet, yet its advocates have gravitated toward the idea of endorsing some sort of government regulation to ensure neutrality. That very concept, however, is counter to network neutrality. In a perfect -- and perhaps improbable -- world, the Internet would regulate itself.

"There are two entities we want to keep their hands off the Internet," said Jennifer Granick, civil liberties director of the Electronic Frontier Foundation, a nonprofit digital rights advocacy. "One is broadband providers and the other is the government. We're in a situation where no one wants broadband providers to discriminate and tell consumers what content they can receive and what applications they can run. But no one wants the FCC to do that either."

The net neutrality debate has been going on for years. It reached a high (or low) point when in 2006, then-Sen. Ted Stevens of Alaska clumsily explained the Internet was like a "series of tubes." Despite Stevens' primitive grasp on Internet architecture, as a metaphor, his description isn't entirely without merit. ISPs argue that without the ability to practice network and application management, the "tubes" will get clogged by users who move bandwidth-intensive data, such as video, on the network. What upsets network neutrality advocates is that this network management is likely to take the form of "traffic shaping" -- where content providers that have struck deals with ISPs will be made "more available" to users than rival content providers that haven't agreed to a pact.

Net neutrality advocates say the federal government needs to regulate what kind of network management is acceptable and what kind is essentially extortion. This would prevent, say, Time Warner's Internet customers from not being able to access content that competes with Time Warner. The demand for oversight grew to a fever pitch when, in 2007, Comcast was caught red-handed throttling peer-to-peer traffic, which typically involves large file exchanges like BitTorrent. Comcast never told customers it was managing traffic in such a way, prompting outrage when the practice was discovered. After the FCC ruled Comcast's practices were discriminatory and invasive, the agency banned throttling as a form of network management. Comcast, meanwhile, set about creating new, open network management principles that largely have been well received. Since then, an uneasy truce has existed. But with the election of President Barack Obama and the change in management at the FCC, the issue is once

again at the forefront.

"Obama endorsed network neutrality as a senator. He made it a lead point on his technology policy as part of his campaign," said Christopher Yoo, law and communication professor, and director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. "That technology policy was authored by Julius Genachowski, who's now chairman of the FCC."

Indeed, in October 2009, the FCC voted to begin discussion on rules that Genachowski had proposed. The rules were designed to prevent ISPs from using discriminatory practices in network management. According to the agency, under the proposed rules, the broadband ISPs:

  • would not be allowed to prevent users from sending or receiving the lawful content of the user's choice over the Internet;
  • would not be allowed to prevent users from running lawful applications or using the lawful services of the user's choice;
  • would not be allowed to prevent users from connecting to and using on their networks those lawful devices that do not harm the networks;
  • would not be allowed to deprive users of their entitlement to competition among network, application, service and content providers;
  • would be required to treat lawful content, applications and services in a nondiscriminatory manner; and
  • would be required to 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 rulemaking.

Public comments on the notice of proposed rulemaking were due in January. Replies to comments are due by March 5.

Looking at the proposed rules, it seems that net neutrality advocates finally achieved victory. But some now question whether the FCC has the authority to enforce such sweeping regulation, and whether the rules are so ambiguous that they'll allow the federal government to crack down on content it finds unacceptable.

Follow the Money

Net neutrality observers like Yoo and Granick see the issue as a battle between ISPs and content providers, with end-users largely on the sidelines. Content providers like Google benefit in an environment where all content is treated equally. Content providers make money by getting eyeballs on their Web pages. None of their profit needs to go to investing in the nation's broadband infrastructure. That responsibility is largely at the feet of ISPs. The ISP argument, then, is that for broadband expansion -- the cornerstone of Obama's technology policy and the stimulus package -- to occur, revenue needs to increase to build out next-generation infrastructure, like fiber-optic lines to individual homes.

To generate that increased revenue, ISPs say they should be able to do one of two things: favor traffic going to content they provide by slowing or stopping traffic to competing content providers; or cutting deals with content providers so end-users get a better Web experience by using those providers' sites. Tiered end-user service, one of the rallying cries of early net neutrality advocates, already exists. Most ISPs offer different levels of broadband connection speeds at different prices.

Government Technology requested comment from Comcast on the FCC's proposed rules. However, the company would only provide prewritten statements from the executive vice president, David L. Cohen.

"We welcome the dialog suggested by [Chairman Genachowski] in his comments, and we completely agree that any consideration of new 'rules of the road' begin with notice and an open, public rulemaking proceeding -- this is both fair and appropriate," Cohen wrote in September. "But before we rush into a new regulatory environment for the Internet, let's remember there can be no doubt that the Internet has enjoyed immense growth even as these debates have gone on."

Dan Martin, a member of Google's Global Communications and Public Affairs team, countered such arguments against federal regulation.

"The FCC is basically trying to outline rules of the road that will ensure broadband providers aren't allowed to begin discriminating against certain types of traffic for commercial purposes," he said. "From our perspective, we've always said that folks should be able to practice reasonable network management. Obviously there's a certain amount of bandwidth and ISPs need to be able to manage traffic. With that said, they shouldn't be able to use that in a way to discriminate against certain types of traffic for commercial purposes."

While the war of words continues between ISPs and content providers, federal regulation of the Internet seems inevitable. The concern now is that if the FCC doesn't get the rules exactly right, they may inadvertently quash innovation down the road.

Many who follow the net neutrality debate -- including the Electronic Frontier Foundation -- are concerned the FCC might be overreaching. An ISP industry source, who spoke on the condition of anonymity, told Government Technology there is a fear the FCC may deliver regulation so shortsighted that business development will be disrupted.

"The current administration, in the campaign, said it was in favor of net neutrality regulations, and it's doing what folks would expect by following through on its campaign promise," the industry source said. "But I don't think people anticipated the changes to be as radical as they might become.

"How far does nondiscrimination go in the final document? What things that we're doing now to serve customer and maintain a network won't be doable? As far as network management, will we be able to manage the network in a way that isn't scary for consumers? And wireless -- how will that engineering deal with radical nondiscrimination?"

Yoo said regulation seems inevitable, and he echoed the sentiment that the FCC would be wise to tread lightly.

"There's a lingering fear that if the FCC says the wrong things in the rules, they could really screw things up badly," he said. "There are new technologies emerging; there'll be new uses that we can't even conceive of today.

"The catch is, they're going to set rules and they're not going to do so with any particular application or technology in mind. And then a new technology or application will come up, and how these old rules will apply to new developments will be essentially arbitrary. No one's thought it through. We're just going to read a bunch of rules that were written for a different context and apply them."

Absence of Control

Instead of relying on the FCC or corporations to dictate the rules, Granick argues for letting the Internet guide itself through its evolution. New and nascent means of broadband delivery may develop -- such as broadband-over-power-lines or improved wireless broadband -- that may prove feasible, but may be hindered by poorly conceived federal regulations.

"If the choice is between corporations and government, they're both bad choices. But that may not really be the choice we're faced with," she said. "So we need to resist the temptation to react so strongly against the potential problems with ISPs and say the only solution is government regulation. There are other things that would greatly alleviate the problem and, as the Internet evolves, it may turn out that these things that really worry us now are not worries at all later."

Those "other things" Granick mentions are innovation and competition. End-users often have few choices when it comes to broadband. This is due largely to the regional monopolies that cities and counties established years ago with phone and cable providers.

It stands to reason that some time will elapse before anything concrete comes from the FCC's proposed rules. For

the time being, finding ways to improve competition and broadband availability may solve the net neutrality problem before the FCC puts itself in charge. Plus, the public has proven to be adept at loudly decrying any attempts by ISPs to manage traffic in a discriminatory fashion.

"[Competition] will go much further toward resolving this neutrality problem without having the corollary danger that, once the FCC gets its hands on the Internet, we're also going to see indecency regulation to 'protect the children,' or digital rights management, and those sorts of things," Granick said.

"One of the things the FCC is supposedly charged with doing is to encourage broadband deployment. In some ways, I do think we have the luxury of figuring this out -- despite the FCC's eagerness to move forward -- because the few instances where there has been content or application discrimination have been pretty quickly fixed because of people's attention to the problem," she added. "It's a serious problem, but I think we have some time to see whether we get more broadband providers or broadband-over-power-lines. Competition alone won't fix everything, but it will go a long, long way to fixing the problem."


Chad Vander Veen

Chad Vander Veen previously served as the editor of FutureStructure, and the associate editor of Government Technology and Public CIO magazines.