After failed attempts to get net neutrality legislation passed in 2006, Ed Markey and friends are at it again. This time, the bill has been softened a bit, with the language toned down and the focus on giving the FCC more authority and a mandate to enforce three of Michael Powell’s Four Net Freedoms as drawn from an official policy document of the FCC.

The Bill is actually presented as an amendment to the Communications Act of 1934, as was the 1996 Telecom Act. The preamble lays out the purpose of the Bill, which seems inocuous enough:

The importance of the broadband marketplace to citizens, communities, and commerce warrants a thorough inquiry to obtain input and ideas for a variety of broadband policies that will promote openness, competition, innovation, and affordable, ubiquitous broadband service for all individuals in the United States.

It then moves into rather shakier territory:

It is the policy of the United States… to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception.

Here’s where things get tricky, because in proposing a new set of formal rules for the Internet Markey is relying on a presumed “policy” that has existed hitherto, but this of course is nonsense. Since the Internet is a private enterprise made up of thousands of individuals and companies, it hasn’t had a policy because it hasn’t needed one - it’s been run according to the competing priorities and goals of all those involved in it.

The other crutch for his position is “user expectations” which, of course, is at least as vague, if not more so. And herein lies the problem - rather than allowing the FCC full freedom to determine what future policy around the Internet should be, what user expectations really are, and how to balance those against the real-world economics that underpin the Internet, Markey has taken the first few steps for them and thereby limited their options. So, far from allowing the FCC to undertake “a thorough inquiry to obtain input and ideas for a variety of broadband policies” Markey has provided a much narrower framework than his preamble suggests.

A little lower down in the policy section the Bill states that it should be US policy:

(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and

(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.

Part (3) is merely a summary of the three net freedoms which will be enumerated later on, but note the reference to legality here. Part (4) then goes on to state the simple premise of neutrality, which forbids “unreasonable” treatment based on source, ownership or destination. For starters, we have a conflict between the ownership provision here and the legality provision in part (3) - if a provider was able to conclude that content being shared was not owned by the person sharing it and therefore was being transmitted illegally, would that come under part 3 (where it would be allowed) or part 4 (where it wouldn’t)?

And how do we define “reasonable”? Comcast (the only provider to have openly stated it plans to be non-neutral in its treatment of traffic) would argue that its traffic management and shaping are reasonable because they are necessary to allow its services to all customers to run smoothly without massive additional investment. On what basis will the FCC second guess this judgement if the only criterion is that such action should be “reasonable”?

The specific mandate for the FCC to look into the current state of the market and determine appropriate policies comes a little later:

Within 90 days after the date of the enactment of this Act, the Federal Communications Commission (in this Act referred to as the ‘‘Commission’’) shall commence a proceeding on broadband services and consumer rights.

Specifically, this proceeding needs to determine the following:

• Whether any provider is currently in violation of the three net freedoms (relating to applications, content and devices)
• Whether “broadband network providers add charges for quality of service, or other similar additional fees or surcharges, to certain Internet applications and service providers” in contravention of the net neutrality principles set out earlier. This obviously goes right to the heart of one of the two scenarios which have been laid out by providers under which they would want to be less than neutral - to deliver content at premium speeds and quality for a premium price (the FedEx vs. USPS model), and is therefore worrying. In addition, it’s not clear how this would affect players like Akamai, which specialise in providing such services.
• Whether “broadband network providers offer to consumers parental control protection tools, services to combat unsolicited commercial electronic mail, and other similar consumer services, the manner in which such services are offered, and the extent to which such services are consistent with such policies of the United States”. Most people seem to have read this as a sop to Republican lawmakers but I wonder if it isn’t actually the opposite - since it’s hard to imagine a way in which the lack of parental controls and spam filters could contravene net neutrality, but it’s possible to see how an extreme interpretation of net neutrality principles could lead you to believe the presence of such controls would violate them. At the very least the intent of this paragraph needs to be clarified.
• Network prioritisation practices by providers and their consistency with net neutrality principles
• The relationship between net neutrality principles as applied so far with competition in Internet services
• Whether providing a sufficiently fat pipe could excuse a provider from these rules. This is a particularly interesting one - the whole point is that we’re getting fatter and fatter pipes in the access network, but the backhaul portion is where the bottleneck occurs, and that’s the very reason for wanting to offer QoS enabled services in the first place. Carriers want to avoid building out massive additional bandwidth in that part of the network by more effectively prioritising traffic - few will qualify for this condition as a result, unless the FCC is stupid enough to look at access speeds alone. But it also goes to the heart of the matter - whether prioritising some traffic necessarily degrades all other traffic, including competing traffic. If it does, the argument for neutrality at least has some merit. If it doesn’t, then that argument essentially goes away.

The Bill further requires eight additional broadband summits to be held around the country within one year of the passage of the Bill into law. These summits will exist

to assess competition, consumer protection, and consumer choice issues related to broadband Internet access services.

Note no mention of current limitations of the Internet, the economics associated with the current business model and any future business models either in keeping with or in contravention of net neutrality. And the “technology sector” is the last group mentioned in the list of individuals and entities to be invited to such summits, and presumably includes providers, though that’s not explicit. The focus is very much on consumers and their “rights” and views rather than on a balanced evaluation of the competing interests of consumers and providers.

The output of all this is a report back to Congress with recommendations, which is the kicker here. Representative Chip Pickering (R) has signed on for this Bill but had opposed previous attempts, on the basis that this one was rather softer than previous attempts in its aims and prescriptiveness. However, the idea that the ball is going to be back in Congress’s court rather than remaining with the FCC at the end of the process suggests this may just be a smokescreen to get a net neutrality Act into the statute books and then follow up in a year’s time with a much harsher version based on all the work done by the FCC. The Bill has largely been described in blogs and articles as giving the FCC more teeth to deal with abuses of the net freedoms but there’s actually nothing in here that does that. It merely asks the FCC to go and do the legwork and then hand the results over to Congress for a solution. At a time when Democrats (who largely strongly favour net neutrality) are likely to increase their majority in Congress and also appoint a Democrat-led FCC, this is particularly worrying.

My own position on net neutrality has always been this: that those willing to pay a premium for premium delivery (whether they be content owners or end users) should be able to do so, and that the best way to architect such a delivery system is to do it in parallel with the existing Internet infrastructure such that other traffic is not degraded by it. To the extent that there is a bottleneck in traffic, all remaining traffic would be degraded equally by virtue of its volume, not because of any discriminatory measures. I also think it would be reasonable within that broad flow of content to prioritise real-time traffic (primarily voice and video) and allow non-real-time traffic such as website data and emails to be processed slightly more slowly. I don’t think the Bill as currently written would allow that model to exist, and I therefore believe it’s deeply flawed.