FCC: Disagreement 'Narrowed' on Net Neutrality Proposals

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The Federal Communications Commission Wednesday indicated there is a growing consensus on many of its net neutrality proposals.

Bolstering reports that network neutrality stakeholders had made progress in coming up with a common framework for clarifying the FCC's network neutrality authority, the agencys notice of further inquiry into its proposed codification and expansion of network neutrality guidelines said disagreement had "narrowed" on many of the key elements of its proposal.

According to the FCC, that "narrowed disagreement" includes 1) "that broadband providers should not prevent users from sending and receiving the lawful content of their choice, using the lawful applications and services of their choice, and connecting the nonharmful devices of their choice to the network, at least on fixed or wireline broadband platforms;" 2) "that broadband providers should be transparent regarding their network management practices"; 3) "that with respect to the handling of lawful traffic, some form of anti-discrimination protection is appropriate, at least on fixed or wireline broadband platforms"; 4) "that broadband providers must be able to reasonably manage their networks, including through appropriate and tailored mechanisms that reduce the effects of congestion or address traffic that is unwanted by users or harmful to the network"; 5) ", that in light of rapid technological and market change, enforcing high-level rules of the road through case-by-case adjudication, informed by engineering expertise, is a better policy approach than promulgating detailed, prescriptive rules that may have consequences that are difficult to foresee."

The commission announced Wednesday it was seeking more input on two "complex" issues over which there had not been a similar meeting of the minds: "the relationship between open Internet protections and services that are provided over the same last-mile facilities as broadband Internet access service (commonly called "managed" or "specialized" services)"; and "the application of open Internet rules to mobile wireless Internet access services." Those were both raised in the original network neutrality notice of proposed rulemaking, but have become hot-button issues since news or a Google/Verizon accord on those issues and the FCC says it needs to gather more info on them.

That decision will likely push any action on the network neutrality rulemaking into at least early 2011, since the FCC is giving commenters almost three months to weigh in, then needs to vet those comments before taking any action.

In the notice of further comment, the FCC outlined its further concerns about specialized services in three areas: the fear that those services will get to bypass open Internet protections, that such services could "supplant the Open Internet" and allow broadband providers to constrict capacity on the 'net in favor of those specialized services, or that competitors could discriminate against competing specialized services.

The FCC also proposes six possible approaches, alone or in combination. A) Clearly define broadband Internet Access "clearly and perhaps broadly" and apply open access conditions to all of them, with the specialized service designation going to whatever was left and not subject to open access conditions, but perhaps to one or more of the other approaches; B) require that Internet access be offered as a stand-alone service and that specialized services not be marketed as Internet access or a substitute for it; C) require clear disclosures; D) require specialized services be offered on similar terms and conditions to third parties; E) allow only a limited set of specialized services with functionality not provided on the Internet, like a telemedicine application that requires "enhanced quality of service'; F) Preventing specialized services from slowing the performance of Internet access service, including during times of peak usage.

Those are responsive to a number of points raised by both sides of the issue. Networks have argued, for example, that specialized services need to be allowed for the bandwidth-heavy health and energy and education applications the FCC has been promoting, though those nets would likely not support a "special set" of services if it were confined to those public purpose uses. Guaranteeing capacity would address concerns by public interest groups that networks would wind up favoring those paid-of-priority services when bandwidth push came to shove.

As to applying openness conditions to mobile broadband, the FCC said it needs to update the record since the rulemaking proposal was issued last fall given recent events, including the announcement by AT&T that it was offering a differential pricing plan based on data usage. The commission suggests those plans may be a good thing because as a governor on usage, they could reduce the incentive to use other, more restrictive means, to manage the networks and potentially "run afoul" of openness principles. Among the questions it wants answered is whether wireless carriers should be permitted to restrict distribution of some types of network management devices and whether they should have less discretion over applications that compete with services they offer.

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