Friday, January 16, 2009

Democrats seek to implement net-neutrality as part of 'stimulus'; devil remains in the details

Declan McCullagh of CNET reports that House Democrats
are using the 258-page [stimulus] legislation to sneak Net neutrality rules in through the back door.

The so-called stimulus package hands out billions of dollars in grants for broadband and wireless development, primarily in what are called "unserved" and "underserved" areas. The U.S. Department of Commerce is charged with writing checks-with-many-zeros-on-them to eligible recipients, including telecommunications companies, local and state governments, and even construction companies and other businesses that might be interested.

The catch is that the federal largesse comes with Net neutrality strings attached. The Commerce Department must ensure that the recipients "adhere to" the Federal Communications Commission's 2005 broadband policy statement (PDF)--which the FCC said at the time was advisory and "not enforceable," and has become the subject of a lawsuit before a federal appeals court in Washington, D.C.
The fact that Democrats are pushing net neutrality isn't particularly surprising; President-elect Obama has made no secret of his support of the concept. The important thing to keep in mind is that there are varying definitions of net neutrality; there are practices that would be permitted under one version of a net neutrality mandate that wouldn't be permitted under another. For example, certain anti-piracy measures such as filtering or bandwidth-shaping would be allowed under a narrow definition that freely permits "reasonable network management" techniques -- but not under a broader one (which is really what explains the recent dust-up over the Wall Street Journal's article suggesting that Google and Larry Lessig were backing off support for NN mandates). Notably, the FCC ordered Comcast to stop throttling BitTorrent traffic, a practice that Comcast defended, unsuccessfully, as "reasonable network management." That decision is currently on appeal, though, interestingly, some on the copyleft, while pleased that Comcast's actions were declared illegal, were rightly troubled by the FCC's arguable lack of authority to regulate the Internet. It is primarily (though not solely) this concern with piracy that motivates the film industry's opposition to a net-neutrality mandate.

McCullagh's article makes clear that the House bill seeks to track the FCC's Broadband Policy Statement, which explicitly permits "reasonable network management" (see footnote 15). But, as the FCC's Comcast decision demonstrates, there is considerable disagreement over just what is "reasonable." That battle will likely be fought in the courts for years to come.

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