Down In the Weeds of Network Neutrality

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“Network neutrality” is an easy concept to define: Internet service providers should allow access to all legitimate content and applications on an equal basis.

Sounds simple, right? But it’s going to be far more complex to establish and enforce specific net-neutrality rules, as FCC chairman Julius Genachowski wants the agency to do (see Net Neutrality In High Gear).

To start with, the FCC does not even have a definition of what broadband is, much less what the specific rules for providing “open” access to broadband should look like (see FCC Seeks More Help In Defining Broadband).

Genachowski said any new network-neutrality rules will allow for “reasonable” network management. But what will that mean in practice?

Cox, for example, has been testing a system that — during times of network congestion — gives upstream priority to applications sensitive to delay and latency, such a voice over IP, while giving lower priority to applications like file uploads (see Cox Kicks Off Throttling Test). Is that “reasonable”?

Let’s say the FCC comes up with a list of applications that are OK to put in the “slow lane.” Will ISPs need to apply for a waiver to the rules if a new Internet app suddenly becomes wildly popular and starts clogging broadband pipes?

Traditional FCC-style regulation would have trouble keeping up with the dynamic nature of the Internet. Another example: Genachowksi, in his speech last week, spoke of the need to ensure a “spam-free Internet experience”– but what new bureaucracy will be required to adjudicate disputes over who is and who isn’t a spammer? Will bulk e-mail marketers gain a new forum to argue their “network neutrality” rights are being trampled?

As I wrote last week, well-intentioned rules can lead to needless cost (see Network Neutrality Rules Can’t Be Bad. Can They?). And once FCC rules are established, they can be difficult to modify.

Take, for instance, the FCC’s mandate that every HD digital cable set-top box include an IEEE 1394 (a.k.a. FireWire) high-performance serial bus port. Five years ago, this interface technology looked like it might become a standard way to hook up an HDTV or other devices to a cable box. But today almost nobody uses the FireWire ports in an HD set-top. So while the market has moved on, the FCC rule remains in place — leading Intel to lobby the agency last year to change the rule and mandate an IP-based interface, like Ethernet, on set-tops.

At this point, it’s not clear what the scope of FCC’s network-neutrality rules will be. But there’s inherent difficulty in translating general principles into consistent, enforceable rules. The FCC would be wise to err on the side of caution in establishing new regulations for the Internet.