Finally…Rules for the Road

We just got back from an open meeting at the Federal Communications Commission where the Chairman announced a new rulemaking on Internet neutrality. It is too early to know whether we were witnesses to a historic moment in the evolution of the Internet; only time will tell. But we were surely witnesses to the beginning of a serious and substantive drill-down on the issue that is long overdue. After close to a decade of uncertainty, we are finally at the beginning of a process that promises to preserve the core characteristics of the open Internet and give certainty to all of the Internet’s stakeholders.

We applaud FCC Chairman Genachowski for launching a thoughtful and substantive process that will encourage everyone with a stake in the outcome to get past the heated rhetoric, roll up their sleeves, and put facts and technical details on the table. Immediately striking for those of us in the room was the cooperative tone among the Commissioners, the collegiality, and the obvious amount of effort that the Chairman expended in reaching out to his fellow Commissioners. And contrary to the strident efforts by some on the Hill to derail the FCC proceeding before it started, it was striking that all five Commissioners – including the two Republicans – agreed that it was a valuable step to conduct a careful rulemaking that focuses on concrete issues and concerns of both neutrality advocates and network operators. That doesn’t mean that all of the Commissioners now believe that neutrality rules are appropriate. But it may mean that a more productive tone will finally render a more productive proceeding. It is not just the FCC that is encouraging dialing down the heat and turning up the light. Last night, Google and Verizon Wireless posted a joint blog post setting out where they found common ground on Internet Neutrality.

It’s worth a read. They agree, for example, that “it makes sense for the Commission to establish that these existing principles are enforceable, and implement them on a case-by-case basis.” Although those two companies – as well as the five FCC Commissioners – will not agree on all of the details about neutrality, it is great to see this debate move to a more constructive level. On substance, we applaud the FCC’s proposal that it add two new neutrality principles to the four principles announced in 2005. Both non-discrimination and transparency are critical values, and CDT has long urged that they be added to the neutrality rules. Today’s meeting is a major step in the right direction on neutrality. But with a copy of the proposed rule in hand, we worry about the exceptions and caveats to the neutrality rules for network management, quality of service and other grounds.

The devil will be in the details, and we will all need to do a deeper dive on a range of issues in the coming days. Critical issues will be: – The meaning of “reasonable network management” and “quality of service” and whether that management strays into content management (and content discrimination); – How to frame the legal jurisdiction or authority of the FCC to take action on neutrality so that the Commission does not become a general purpose regulator of the Internet; and – Whether the same neutrality rules that will apply to wire broadband services will also apply to wireless services. Thankfully, unlike how the FCC has operated over the past decade, we actually have a copy of the NPRM a mere 3 hours after the open meeting – and it contains an actual draft of the proposed rules. Some will argue in this proceeding that the Commission should apply neutrality rules to Internet applications like search engines. This is a red herring and we will tell the Commission as much. Not only does the Commission have no authority over Internet websites, content, or applications, but search, video, and other applications do not suffer from the same bottleneck problem that the underlying broadband service inherently has. Most important, if the goal of the proceeding is to preserve the open Internet, the FCC needs to draw a bright line between regulation of the last-mile network and the regulation of Internet content, applications, and services.