FCC Takes Sides In Net-Neutrality Debate

By Rob Pegoraro
Sunday, September 27, 2009

On Monday, the new chairman of the Federal Communications Commission said the agency would write rules requiring Internet providers to do something many of them already say they do: deliver online content without discrimination. So why were there so many long faces in telecom afterward?

Chairman Julius Genachowski's speech at the Brookings Institution brought two "network-neutrality" questions back into the headlines. One: Is it bad if providers treat certain kinds of Internet data better than others? Two: Should the government do anything about it?

Genachowski, a lawyer and technology investor nominated by President Obama to the commission in March, argued that the answer to both questions should be yes, citing the lack of competition in many markets; the conflict of interest posed by providers that also sell voice and TV services, which could be replaced by Web-delivered alternatives; and the difficulty of checking whether your provider is slowing down sites or services.

Further, Genachowski said network-neutrality rules should cover not just land-based cable, DSL and fiber-optic connections -- which have seen few neutrality conflicts since Comcast's attempts to throttle BitTorrent file-sharing in 2007 -- but also the mobile broadband services of wireless-phone carriers.

That's where this debate gets a lot more interesting and relevant.

Although wireless carriers tout their data services as comparable with wired Internet connections -- a claim that's gone beyond puffery with the arrival of fast 3G and upcoming "4G" services -- they don't sell them like the wired kind.

The four nationwide carriers -- AT&T Wireless, Sprint Nextel, T-Mobile and Verizon Wireless -- impose strikingly similar restrictions on their connections. Beyond setting monthly bandwidth quotas (sometimes unenforced), they prohibit or limit such common uses as sharing a connection with other computers or using peer-to-peer file transfers.

AT&T's terms of service are particularly stringent, going so far as to prohibit "redirecting television signals for viewing" on the iPhone (a jab at Echostar subsidiary Sling Media's SlingPlayer TV-viewing software).

So when readers ask whether they could use a mobile-broadband service in place of cable or DSL, I have to warn against that option.

Genachowski's suggested rule that "broadband providers cannot discriminate against particular Internet content or applications" would wipe out most of those fine-print restrictions.

But other limits would persist, beyond common-sense bans on such network abuses as virus distribution and spamming.

For example, Genachowski's speech didn't address smartphone manufacturers' restrictions on third-party software, such as Apple's holdup of Google's Google Voice phone-calling program. Theoretically, a carrier could still launder its disapproval of an Internet service through a phone vendor's app-store policies.

More importantly, net-neutrality rules would let Internet providers limit subscribers' overall use. And if your excessive downloading got in the way of other customers' access, a provider could restrict your connection (although Genachowski's rule that providers "be transparent about their network management practices" should make it clear what conduct would get you in trouble).

Don't underestimate the odds of content restrictions being replaced by bandwidth restrictions. Executives at wireless carriers, when granted permission to speak without their names or their companies showing up in print, can spend a lot of time talking about their network-capacity issues.

They have good reasons to be worried. All of AT&T's rules have not prevented its network from being swamped by all the traffic generated by iPhone users.

But as a customer, I would rather know just what I'm buying in terms of megabytes per day, week or month than have to discover that my new service blocks a site or application that works on other connections. In turn, we'll see more innovation if new Internet applications don't have to ask permission from a wireless carrier.

Wireless carriers, meanwhile, fail to make a solid argument for keeping their restrictions. They talk about their freedom to develop new business models, but where are the innovative services made possible by these limits?

They make a fairer point when warning about the risks of added regulation. Every time you force private enterprise to interact with a government agency, you create expensive work for lawyers and lobbyists and increase the odds of corruption down the line.

You also cannot count on the FCC to defend consumer interests: Under the Bush administration, the FCC forced television manufacturers to build copying restrictions into digital televisions until a court struck down its "broadcast flag" rule.

But if we assume that wireless Internet access will be a legitimate alternative to ground-bound broadband, we should make sure it will work the same way. Maybe the threat of regulation alone can alter wireless carriers' behavior; if not, the FCC should write the simplest, clearest rules possible.

The Internet has grown and prospered because of a principle built into its core design -- it's open to your imagination -- and that principle is worth defending.

Living with technology, or trying to? E-mail Rob Pegoraro at robp@washpost.com. Read more at http://voices.washingtonpost.com/fasterforward.

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