FCC to Formalize Network-Neutrality Rules9/21/2009 11:13 AM Eastern
Saying the Federal Communications Commission must be a "smart
cop on the beat preserving a free and open Internet," 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 agency's October meeting.
The move was necessary, he said, 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 online content or applications, while allowing for "reasonable
network management." The devil will be in the details of what qualifies as
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 acting FCC chairman Michael Copps has long advocated
for the fifth principle and for transparency, as well as for codifying the
"The FCC's Statement
of Four Internet Principles that we won in 2005 was the initial downpayment
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 Democratic commissioner, Mignon Clyburn, also
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
"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," she added. "I look forward to working with the
chairman and my fellow commissioners to move expeditiously on this issue of
great importance to the country."
Genachowski had been expected to outline his
network-neutrality plans at a Brookings Institution broadband event on Monday.
"The Internet is an extraordinary platform for innovation,
job creation, investment, and opportunity," he intended to tell the Brookings
audience. "It has unleashed the potential of entrepreneurs and enabled the
launch and growth of small businesses across America.
It is vital that we safeguard the free and open Internet."
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
The chairman's speech, according to an advanced copy, will
outline 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
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
"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
"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
The American Cable Association, which represents smaller
independent MSOs, was quick to ask the commission to look into the issue of Web
companies using their leverage to get preferential treatment for their services
"If the FCC moves forward with its rulemaking, 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," said ACA
president Matt Polka.