Net Neutrality Draft Surfaces

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 FCC 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."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.