The Troposphere

Mar 30 2010   5:03PM GMT

UPDATE: Net Neutrality far from dead–National Broadband Plan axes net neutrality proposal?

CarlBrooks Carl Brooks Profile: CarlBrooks

The FCC raised eyebrows last Friday with its proposed National Broadband Plan at a Congressional hearing last week by excising any mention of net neutrality—the idea that internet providers have to treat their customers and competitors fairly—from the plan. The Broadband Plan also wants to continue the digital wireless spectrum grab, reallocating TV bands to wireless data providers.

Net neutrality is a strong area of interest for cloud computing providers, since they rely on telcos to get the computing out of their cloud and into the hands of customers. The federally mandated minimum of at least one blogger going bananas on any topic was met and net neutrality was declared dead.

Is it? FCC chairman Julius Genachowski is a strong proponent of net neutrality; the proposed national Broadband Plan lists “robust competition” as the first priority; and a rule change submitted by Genachowski governing the carrier status of telcos and ISPs was submitted last year but has yet to be voted on, so I’ll reserve judgment on how dead any of this is.

There’s no indication this administration or the FCC are anything but net positive on net neutrality. A working hypothesis can be formed by taking the view that the term ‘net neutrality’ has been punched into such a shapeless mush of political irritants that simply bringing up the term in the plan would be a polarizing and wasteful exercise in How to Make it Impossible for a Republican to Vote for Your Idea.

The FCC’s plan says it aims to:

 “Develop disclosure requirements for broadband service providers to ensure consumers have the pricing and performance information they need to choose the best broadband offers in the market. Increased transparency will incent service providers to compete for customers on the basis of actual performance.”

If that happens then the networks will, by default, become more neutral as providers strive to undercut each other (provided there’s actually any choices left in your neighborhood or business parks). That’s a long way from dead for net neutrality, even if the term is being avoided.

UPDATE:

On April 6th, the DC U.S court of Appeals ruled that the FCC cannot keep Comcast from discriminating against consumers based on how they use the internet. in response, the pundits went full steam ahead on the Net Neutrality is Dead carnival boat, overlooking the true meaning of the ruling. My response below, from Alex Howard’s post:

I wanted to comment on the heart of the ruling, which is that cable ISPs (and FIOS, essentially any broadband provider) are scheduled (loosely) under Title I of the Telecom Act, since the Powell-era Cable Modem Order, as information services instead of communication services.

The Supreme Court ruled that classification as within the scope of the FCC’s powers (however strange it might seem in the light of the intent of the law) in BrandX v FCC, and this decision today upholds that classification. Technically, this is a very sound legal decision, which is probably why it was unanimous.

If the FCC had classified ISPs as common carriers under Title II, the same lawsuit would have be 3-0 the other way. That is the only option the FCC has for exerting regulatory authority of this type over broadband providers.

Will that happen? It’s unclear. Genachowski isn’t averse to that, philosophically, one supposes, but it would be an epic sh*tstorm.

To sum up, the FCC clearly has the tools it needs to order broadband providers to be treated like common carriers and if anything, these decisions show that the courts are very consistent in upholding that authority. It simply has not done so.

So let’s TRY to remember, kids; nothing is bound in stone here. The FCC still retains the power and the ability to effect net neutrality by any number of means, certainly including, but not limited to, Title II of the Telecommunications Act. It is a matter of regulatory policy, not settled law.

The current administration is far more likely to take a pragmatic approach to settling in competition in small pragmatic steps, as it clearly intends to do in the National Broadband Plan, before it uncorks the inevitably contentious idea of reclassifying ISPs as communications providers instead of information providers.

So quit saying “net neutrality is dead, OMG”, please. It isn’t helpful or accurate.

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