Why the Google-Verizon Proposal Falls Short

It’s hot this week in DC, but that didn’t stop Google and Verizon from pouring gasoline on the debate over Internet neutrality rules.  After much drama and speculation (some of which was tweeted to be erroneous), the two giants from opposite sides of the tubes announced their joint proposal for a legislative framework to preserve the open Internet.  But while the proposal hits some of the right notes, it goes flat in several significant areas.  Its shortcomings would leave gaping loopholes that could compromise openness instead of preserving it.

First, the good points.  The proposal makes a strong statement on FCC authority, saying that its jurisdiction should not extend to Internet content, applications, or services.  This is a principle CDT has argued for at every turn, and a critical part of any legislative or administrative action on Internet neutrality.  In addition, the proposal includes a presumption against prioritization among Internet traffic, and a strong basic transparency principle covering service offerings and network management practices.  There is also some recognition of the risk inherent in allowing carriers to provide additional non-Internet services that could squeeze out the open Internet (more on this in a minute).

So what is wrong with the proposal?  First, the agreement would basically take wireless off the table.  The document lays out a number of principles aimed at wired access, but the only principle that would apply to wireless carriers would be a transparency rule.  This means wireless Internet access providers could block, throttle, and discriminate against specific applications and services all they wanted, as long as they were upfront about it.  In times of increasing convergence and skyrocketing use of mobile data, it would be unacceptable to have one regulatory framework for wired access and another – almost lawless – environment for wireless.  CDT has recognized in its filings with the FCC that wireless service might require more flexibility for network management due to interference and capacity constraints, but we see no credible reason to leave wireless completely outside the rules.

Second, the proposal would also allow what it calls "additional or differentiated services" to be too open-ended and ill defined.  CDT is not opposed to carriers’ offering such services, provided they are narrowly defined, kept in check and do not become a back door out from under the rules.  At a high level, the plan seems to include this idea that additional services should not crowd out the open Internet: they must be "distinguishable in scope and purpose" from Internet access.  But the proposal does not flesh out this notion to the point of meaningful enforceability.  Pardon the wonky clich√©, but without giving the FCC any meaningful ability to police the line between “additional services” and Internet service, this threatens to be the exception that swallows the rule.

The only check against the possibility that an ISP's suite of specialized services could squeeze our or supplant the open Internet would come in the form of FCC reports to Congress on the effect of these additional services.  That’s the United States Congress, where one colleague of mine recently quipped he first testified on what became the 1996 Telecommunications Act in 1982.  If specialized services begin to cannibalize the open Internet, Congressional action may well be too slow to prevent the "cable-ization" of broadband into a series of mass-media premium channels at the expense of the Internet’s great democratic potential.  The Internet is about accessibility and low barriers to entry, and an unchecked move toward specialized services would reconstruct the very walls it has torn down over the last 20+ years.

Until these gaps are filled in, this proposal represents nothing more than a negotiated agreement between two self-interested companies as to what they could live with, not something Congress should run with. The FCC needs to get beyond this distraction and move ahead with an order establishing a robust neutrality framework. And Congress too must recognize that the Google-Verizon proposal is at best incomplete.

For further analysis on this issue, please read the blogs of CDT Fellows Susan Crawford and Jonathan Zittrain.

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