Filling in the blanks on the FCC’s Net neutrality proposal

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The Federal Communications Commission isn’t releasing details of Chairman Julius Genachowski’s latest proposal for Net neutrality rules, but staffers provided a couple of revealing clues Wednesday.

First, the proposal doesn’t back away from any of the six principles Genachowski laid out in his first Net neutrality speech in September 2009: the ‘four freedoms’ endorsed by the FCC under the two previous Republican chairmen, plus requirements that broadband providers manage their networks transparently and without discriminating unreasonably among the various content sources, service providers and applications.

Second, the proposal mirrors a draft bill that Reps. Henry Waxman (D-Calif.) and Rick Boucher (D-Va.) tried to push through the House Energy and Commerce Committee earlier this year, only to be blocked by a senior Republican. That measure -- which was backed by at least one key Republican on the committee, some broadband providers, tech industry players and advocacy groups -- would have been less intrusive than the FCC’s original rulemaking proposal. More important, it would have barred the FCC from reclassifying broadband as a telecommunications service, which could have made it subject to price regulation and a host of other potential rules.

In particular ...

... the Waxman draft would have allowed Internet service providers to prioritize some kinds of traffic, as long as it treated all similarly situated competitors the same way. This standard would let ISPs charge websites for better access to customers -- creating a ‘toll lane’ online -- as long as the same terms were available to all. It also would have applied minimal requirements to wireless networks, including that they not block access to any legal site or any application that competes with their own voice or video services. Bandwidth-hogging activities (e.g., video feeds from Slingbox) could still be throttled if needed to preserve capacity.

How much the details of Genachowski’s proposal diverge from Waxman’s isn’t clear at this point. Genachowski did say, though, that wireless providers would be required to be transparent about network management and comply with ‘a basic no-blocking rule.’ He added that his proposal calls for the FCC to ‘closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive or anti-consumer conduct as appropriate.’

Third, Genachowski’s proposal wouldn’t reclassify broadband as a communications service. Instead, it relies on a smattering of provisions in the Communications Act to establish the commission’s authority to regulate broadband providers. That authority was challenged in April when a federal appeals court threw out a sanction the FCC had ordered against Comcast for discriminating against Vuze, an online video-on-demand service. Staffers said the new proposal makes a better case for the commission’s authority, relying on parts of the law not cited in the Comcast case. Nevertheless, if the full commission adopts the Genachowski plan as expected at its meeting Dec. 21, it will almost certainly have to defend itself in court again.

Opponents of Net neutrality rules have consistently argued that they’re a solution in search of a problem. Advocates, on the other hand, point to two recent actions by Comcast as evidence of the need for the rules. In one case, Level 3 claims Comcast has forced it to start paying for the traffic it delivers to Comcast’s broadband customers because that traffic now includes video-on-demand streams from Netflix -- perhaps the strongest rival out there to the movie and VOD channels Comcast offers through its cable TV service. In the other, Zoom Telephonics claims that Comcast has forced its cable modems to undergo unreasonable and expensive tests that the company hasn’t imposed on other manufacturers in an effort to discourage people from buying Zoom’s devices instead of leasing a modem from Comcast.

Level 3’s complaint looks like a Net neutrality issue, but I don’t think it really is one. The company took over the Netflix business from Akamai, a content-distribution network, and Comcast says it’s treating Level 3 the same way it treats any content-distribution network that sends far more traffic to Comcast’s network than it receives. And Zoom’s dispute might have more to do with how devices are tested for safety than Comcast’s desire for modem-leasing fees. The important point, though, is that the FCC couldn’t do anything to stop Comcast or any other broadband provider from doing what Level 3 and Zoom have alleged. Hence the need for some action in Washington -- and if Congress isn’t going to take it, then the FCC will have to keep trying.

[Updated, 12:58 p.m.: Frank Manning, president and CEO of Zoom Technologies, offered this rebuttal:

Comcast has said that safety is the issue, but that is false. Comcast’s P&E testing isn’t about safety. Requirements relate to whether a modem will become discolored if it’s waxed, whether a modem will work in a room that’s 122 degrees Fahrenheit, and whether, for instance, a modem in a 32-degree room will have any place on its case that gets over 59 degrees. I hope you agree that this doesn’t relate to safety. The issue is that Comcast wants to be the gatekeeper to their network and to retail. Comcast’s position is all too similar to AT&T’s position in the bad old days before Carterfone and FCC Part 68 opened up the phone system and ultimately encouraged the Internet. FCC Part 68 worked very well, and we don’t need Comcast as ‘big brother’ deciding what cable modems can be sold at retail.

Updated, 6:06 p.m.: And now Comcast responds to Zoom’s response. From Sena Fitzmaurice:

Comcast wants to make sure devices our customers purchase at retail will work well and are safe, and we have not asked Zoom to submit to testing that is any different than what we ask of every other cable modem manufacturer we work with. We even offered to let Zoom do the safety testing at their own Chinese manufacturing plants, but they refused this offer. As Zoom decided not to take advantage of the courtesy we offered to simplify testing, we will be more than glad to explain to the FCC as we have already explained to Zoom how their refusal to permit any performance or safety testing of its device will harm consumers.

-- Jon Healey

Healey writes editorials for The Times’ Opinion Manufacturing Division.