Two new principles, plus expansion to cover wireless sector...
Last Friday the FCC leaked news to the press
that today they'd be unveiling their plans for network neutrality. Today new FCC boss Julius Genachowski spoke at the Brookings Institution
about the new plan. As expected the early plan is vague, given the rule making process doesn't officially begin until next month when the rule-making process begins, but the goal is to take the FCC's existing network neutrality policy statement
and codify them into hard rules -- strengthening them to challenges from ISP lawyers.
As it stands, the FCC's policy statement simply encourages that ISPs engage solely in "reasonable" network management, while protecting the consumer's right to access the lawful Internet content, applications, and services of their choice. It also suggests that consumers should have the right to attach any non-harmful devices to the network they see fit.
But what's reasonable isn't defined and the guidelines themselves aren't law, and may not even be enforceable in court. The nebulous wording and shaky legal foundation of these principles opened the door to legal assault from the likes of Comcast, which is currently suing the FCC over their crackdown during the Comcast upstream P2P throttling fiasco
. The FCC's new rules will not only clarify much of this murky terminology, but Genachowski suggests these rules will be expanded to cover the wireless sector.
In Genachowski's speech (which you can read in its entirety here
), he acknowledges he also wants to add new fifth and sixth principles. The fifth focuses on preventing ISPs from discriminating against specific content or applications, while the sixth will focus on requiring that ISPs be completely transparent about their network management practices. Transparency has been particularly problematic in an age of invisible caps and sophisticated throttling hardware. Of course rule specifics will be hashed out in October.
"I will soon circulate to my fellow Commissioners proposed rules prepared by Commission staff embodying the principles I've discussed, and I will ask for their support in issuing a notice of proposed rulemaking," says the new boss. "I will ensure that the rulemaking process will be fair, transparent, fact-based, and data-driven," he says, adding that "anyone will be able to participate in this process, and I hope everyone will."
While anyone and everyone will participate, you can expect lobbyists for AT&T, Comcast and Verizon to continue to get the best seats. Be mindful that lobbyists will likely work very hard to make these principles as weak as possible so they can only
be used in the most egregious instances of foul play. This is a perfect opportunity for telecom lobbyists to pre-empt tougher federal laws, that not coincidentally picked up steam in Congress last week.
Also be aware that when lobbyists see discussions of "transparency," their immediate thought is that it's a perfect opportunity to push harder for low usage caps and high per-byte overages. Mega-carriers believe that as long as they're facing expectations of honesty when it comes to network management, they might as well use the opportunity to their advantage in almost vindictive fashion. Expect the industry's continued dream of shifting from flat-rate pricing to metered billing to play a starring role as the rules get hashed out.