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FCC Chairman Proposes New Net Neutrality Rules

Additional principles would guarantee equal access, transparency

By Martin H. Bosworth
ConsumerAffairs.com

September 21, 2009

In a speech at the Brookings Institution, Genachowski spoke enthusiastically about the Internet's transformation of modern society and the new ideas it has fostered, saying that the biggest rrason the Internet works is due to its "openness."

Genachowski said that the current state of affairs was not sufficient to ensure the Internet remains free and open for users to create and innovate. "We could see the Internet’s doors shut to entrepreneurs, the spirit of innovation stifled, a full and free flow of information compromised. Or we could take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas," he said.

Genachowski said that the "Internet Policy Statement" created by the FCC in 2005 to govern its usage should be adopted as a formal rule by the agency. The Policy Statement guarantees consumers the right to enjoy Internet access lawfully, to use any device they choose to connect to it, and to have meaningful competition among providers -- but it had no enforcement options in case a violation was discovered.

Genachowski proposed two new additions to the "Four Freedoms" that make up the policy statement. One, the "Fifth Principle of Non-Discrimination," would mean that Internet service providers "cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers' homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider."

The rule would allow exceptions for "reasonable network management," such as throttling Internet traffic under times of heavy usage or to prevent spam. But Genachowski said the second new rule would mandate that ISPs would have to disclose how they manage their networks to the FCC and to customers alike.

"Greater transparency will give consumers the confidence of knowing that they’re getting the service they've paid for," Genachowski said.

Under previous chairman Kevin Martin, the FCC ruled last year that Comcast should be penalized for blocking users' access to the popular file-sharing engine BitTorrent. Comcast claimed its actions fell under the heading of "reasonable network management," and is currently challenging the FCC's decision in court.

In addition, Genachowski proposed extending the FCC's jurisdiction over net neutrality to the wireless marketplace, where carriers can often block users from accessing applications on mobile devices at a whim, or "cripple" handsets to prevent certain features from working. Under Genachowski, the FCC recently launched an investigation of the wireless industry, focusing on improving customer experiences and strengthening "truth-in-billing" disclosures.

The agency also launched a new Web site, OpenInternet.gov,to collect opinions from Americans on what form the new rules should take, and how to implement them.

What next?

Some consumer advocates and net neutrality supporters expressed their support for Genachowski's proposals. "This is a tremendous day for millions of us who have been clamoring to keep the Internet free from discrimination," said Josh Silver, executive director of Free Press, "but it's even more important for the hundreds of millions of Internet users for whom net neutrality will safeguard economic innovation, democratic participation and free speech online."

Others were not so optimistic. "Be mindful that lobbyists will likely work very hard to make these principles as weak as possible so they can only be used in the most egregious instances of foul play," wrote Broadband Reports' Karl Bode. "This is a perfect opportunity for telecom lobbyists to pre-empt tougher federal laws."

Jurisdictional issues are also at play, with members of Congress jockeying with the FCC to pass rules governing net neutrality and Internet content. Several bills have been introduced since 2005 to codify net neutrality as part of telecommunications law, but none of them have made it out of Congress.

While President Obama has expressed strong support for net neutrality, the issue has taken a back seat to health care reform and the economy on both Congress' and the White House's agendas this year.

A new bill designed to preserve net neutrality was introduced in the House of Representatives, but it had little legislative momentum until Congressman Henry Waxman (D-CA), chair of the powerful Energy and Commerce Committee, announced on September 17 that he had signed on as a co-sponsor of the legislation.

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