Net Neutrality Draft Surfaces

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A draft of a network neutrality bill being worked on by top House legislators was floating around Washington Monday, a framework that included applying network neutrality principles, including a nondiscrimination and transparency principle, to wired broadband, applying only a more limited version of those principles to wireless, and preventing the Federal Communications Commission from reclassifying broadband as a Title II service.

The FCC would instead deal with violations on a case-by-case basis, as it had planned to before a federal court threw that power into doubt in its BitTorrent decision.

While wired broadband providers would not be allowed to "unreasonably" discriminate against content, that prohibition would be subject to a lengthy definition of reasonable network management (see below).

House Energy & Commerce Democratic leadership have been working on a bill that would clarify the FCC's regulatory authority over broadband, trying to get something on the table before they exit this week to get re-elected. Nothing would likely happen to turn it into law before the lame duck session, if then.

But it would provide a signal to FCC chairman Julius Genachowski to hold off on reclassification.

The bill would sunset after two years, and contains much of the language suggested by ISPs to the Energy & Commerce Committee leadership.

Things not to like in the bill from the perspective of network neutrality backers, according to one speaking on background, was foreclosing the Title II option, the relatively light treatment of wireless broadband, and no mention of the elements of the National Broadband Plan--like migrating the government subsidies from phone to broadband--which the FCC has said needed clarifying.

The bill would give the FCC until Dec. 31, 2011, to figure out if they needed any more authority than the bill contained to implement the plan.

According to the draft, which may not be the final language, wired broadband providers:

"(1) shall not block lawful content, applications, or services, or prohibit the use of non-harmful devices, subject to reasonable network management;

"(2) shall not unjustly or unreasonably discriminate in transmitting lawful traffic over a consumer's wireline broadband Internet access service. For purposes of this subparagraph, reasonable network management practices shall not be construed to be unjustly or unreasonably discriminatory.

"(3) shall disclose accurate and relevant information in plain language regarding the price, performance, and network management practices of its wireline broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop and market new Internet offerings..."

But wireless carriers would be subject to fewer restrictions, including only being subject to a nondiscrimination clause when it comes to competing services. That would conceivably allow them to block or degrade or favor content so long as it was not for a service in competition to one of its own. So, they couldn't block a VoIP service, but could block, say, Twitter.

According to the wireless commandments in the draft, providers:

"(1) shall not block consumers from accessing lawful Internet websites, subject to reasonable network management;

"(2) shall not block lawful applications that compete with the provider's voice or video communications services in which the provider has an attributable interest, subject to reasonable network management; and

"(3) shall disclose with regard to its wireless broadband Internet access services the same information required of wireline broadband Internet access service..."

The FCC would be empowered to fine violators up to $2 million. But it would not be allowed to proceed with its plan to reclassify broadband as a Title II service. "The Commission may not impose regulations on broadband Internet access service or any component thereof under Title II of the Communications Act, except in the event that a provider of broadband Internet access service elects to provide the transmission component of such service as a telecommunications service under Title II of the Communications Act," the draft language says.

The bill would also answer the question of just what reasonable network management is, including a definition with more wiggle room for wireless.

According to the bill, it is defined as "a network management practice that is appropriate and tailored to achieving a legitimate network management function, taking into account the particular network architecture or technology of the provider. It includes appropriate and tailored practices to reduce or mitigate the effects of congestion on a broadband Internet access provider's network; to ensure network security or integrity; to address traffic that is harmful to or unwanted by users, including premise operators, or to the provider's network, or the Internet; to meet the needs of public safety; and to provide services or capabilities to effectuate a consumer's choices, including parental controls or security capabilities. In determining whether a network management practice is reasonable, the Commission shall consider technical requirements, standards, or best practices adopted by one or more independent, widely-recognized Internet community governance initiative or standard-setting organization. In determining whether a network management practice for wireless broadband Internet access service is reasonable, the Commission shall also consider the technical, operational, and other differences between wireless and other broadband Internet access platforms, including the need to ensure the efficient use of spectrum."

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