In the wake of the major decision by the FCC to open up serious and substantial discussion on rule making on Internet neutrality, CDT’s Leslie Harris wrote a guest column for ABC News where she answers the simple question: “Why should you care about Net Neutrality?”

The article offers informative discussion on the basics around the net neutrality debate and is a must-read. Check it out.

We just got back from an open meeting at the Federal Communications Commission where the Chairman announced a new rulemaking on Internet neutrality. It is too early to know whether we were witnesses to a historic moment in the evolution of the Internet; only time will tell. But we were surely witnesses to the beginning of a serious and substantive drill-down on the issue that is long overdue. After close to a decade of uncertainty, we are finally at the beginning of a process that promises to preserve the core characteristics of the open Internet and give certainty to all of the Internet’s stakeholders.

We applaud FCC Chairman Genachowski for launching a thoughtful and substantive process that will encourage everyone with a stake in the outcome to get past the heated rhetoric, roll up their sleeves, and put facts and technical details on the table. Immediately striking for those of us in the room was the cooperative tone among the Commissioners, the collegiality, and the obvious amount of effort that the Chairman expended in reaching out to his fellow Commissioners. And contrary to the strident efforts by some on the Hill to derail the FCC proceeding before it started, it was striking that all five Commissioners – including the two Republicans – agreed that it was a valuable step to conduct a careful rulemaking that focuses on concrete issues and concerns of both neutrality advocates and network operators.

That doesn’t mean that all of the Commissioners now believe that neutrality rules are appropriate. But it may mean that a more productive tone will finally render a more productive proceeding.

It is not just the FCC that is encouraging dialing down the heat and turning up the light. Last night, Google and Verizon Wireless posted a joint blog post setting out where they found common ground on Internet Neutrality. It’s worth a read. They agree, for example, that “it makes sense for the Commission to establish that these existing principles are enforceable, and implement them on a case-by-case basis.” Although those two companies – as well as the five FCC Commissioners – will not agree on all of the details about neutrality, it is great to see this debate move to a more constructive level.
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CDT and a large group of public interest advocates today sent a letter to FCC Chairman Julius Genachowski commending him and the Commission for launching a proceeding later this week to closely examine the issue of Internet neutrality. The proceeding is aimed at ensuring that broadband service providers cannot act as gatekeepers over Internet websites and services, and that the Internet retains its open and innovative character. The letter doesn’t get into specifics of what rules might look like, but affirms that safeguards in this area would strongly serve the public interest. The letter urges the agency to move forward with the policy process and not to be dissuaded by dire and overwrought “predictions of doom” from opponents who want to halt the dialog before it even starts. At this point in the debate on Internet “neutrality,” we think that a proceeding at the FCC would be a constructive step.

CDT does believe that any action on neutrality must be carefully framed so as to not give the FCC broad regulatory power over Internet content and applications. It is vital that the Internet remain free from both gatekeeping by broadband providers, as well as burdensome governmental regulations on what types of content, websites and tools that you can reach online.

In separate announcements yesterday, Verizon Wireless and AT&T took welcome steps towards greater openness in the wireless industry. By “openness,” I mean the extent to which wireless networks allow the use of devices and services that aren’t affiliated with the operators of those networks.

Verizon Wireless said it would work with Google to provide fully open wireless phones running Google’s Android operating system. AT&T said that it would start allowing iPhone owners to run VOIP services, including Skype, when connected to AT&T’s 3G wireless network. (iPhone users previously could use VOIP only when connected to the Internet via a Wi-Fi hotspot.)

These are significant announcements in themselves, but they also illustrate a broader trend. Verizon Wireless decided to open its network to third party devices and applications back in 2007 — a decision CDT applauded as a “major shift with tremendous potential to spur innovation” — and the iPhone, despite occasional controversies over the approval process, famously has spurred a huge market in third party applications. In short, carriers are now well aware that open models offer a great deal of commercial power and appeal.

Still, the timing of all this is interesting, coming shortly after the FCC Chairman announced that the agency plans to propose openness rules that would, for the first time, extend to wireless. Network operators will no doubt argue that yesterday’s developments are more evidence that the industry is headed in the right direction and that no government action is warranted. But the fact that this was reported as news highlights that the wireless and wireline Internet start from different traditions and assumptions. You don’t read many press stories about DSL or cable modem providers making decisions about what computers or online services they will allow customers to use. The general expectation is that those decisions are in the hands of users, and that the network operator doesn’t exercise any kind of gatekeeper control over what users choose to do with the connectivity they purchase.
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FCC Chairman Julius Genachowski this morning ushered in a new phase of the long-running Internet neutrality debate. Over the past few years, the FCC has established some basic principles in a “Policy Statement.” It has issued Notices of Inquiry on network practices and held public meetings on the topic. And it has accused Comcast of violating the Policy Statement, resulting in a pending lawsuit. But now, the FCC will seek to adopt actual rules.

Genachowski’s speech touched on many themes that CDT has been stressing for a long time. (CDT issued this statement shortly after the speech was publicly released.) It is great to see that the FCC’s Chairman shares our perspective to such a remarkable degree. For example:
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The Congressional Research Service is a $100 million a year think tank that researches and writes informative and non-partisan reports on topics suggested by members of Congress. The catch–and the reason you might not have read their work–is that CRS reports are only made easily available to members of Congress. Citizens can request these reports from lawmakers, but without a public index, they can’t request something they don’t know exists. The CRS Reports currently rank first on CDT’s Most Wanted Government Documents. In an ongoing effort liberate these documents, CDT runs Open CRS, an online repository of public CRS Reports. To spotlight these reports, I will be writing “CRS Report of the Week” posts and feature a relevant report each week. These reports are informative in both that they serve as excellent primers to political issues and that they offer a degree of insight into what information is circulating around Congress.

Access to Broadband Networks: The Net Neutrality Debate
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June 1, 2009

July 21st has passed, which means just one thing: Reply Comments to the Federal Communications Commission (FCC) Broadband Plan are in! Anyone interested in digging in and reading the Reply Comments can do so by searching the FCC’s website using the parameters Proceeding 09-51 and Document Type RC (CDT’s Reply Comments can be found here). This CRS Report on the Net Neutrality Debate might come in handy before you dive in. It was written very recently, which makes it even more useful.
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The federal agencies responsible for administering the broadband stimulus program have announced their initial grant criteria, and the news on the openness front is good.

In comments filed in April, CDT urged that broadband services supported by stimulus money should connect users to the full Internet and the full range of Internet-based content and applications, as selected by users and without discrimination.  After all, the core policy rationale for supporting broadband is that it serves as crucial basic infrastructure, much like roads or electricity.  Basic infrastructure is so important precisely because it enables so much other activity, much of which cannot be anticipated at the time the infrastructure is laid and is initiated by users of the infrastructure rather than the infrastructure’s operators.

In a “Notice of Funding Availability” (NOFA) released yesterday, the agencies (NTIA and RUS) handling the broadband grant programs embraced the view of CDT and other advocates that broadband grantees should be subject to nondiscrimination requirements that go beyond the FCC’s 2005 broadband Policy Statement.  The NOFA says that grantees must “not favor any lawful Internet applications or content over others,” a requirement that “ensures neutral routing.”  This explicit nondiscrimination requirement should provide much better protection against the risk of network operators playing favorites than relying exclusively on the FCC Policy Statement, as some parties had urged the agencies to do.

The NOFA goes on to permit reasonable network management, as it should.  It doesn’t try to spell out precisely what this entails, but the language suggests that technical measures aimed at service quality should be “generally accepted” — perhaps a hint that, as CDT has argued, congestion management techniques should be consistent with basic networking standards.  The NOFA also points to caching and “application-neutral bandwidth allocation” as examples of techniques that would be permitted; hopefully this is meant to suggest that application-specific tactics, like Comcast’s interference with BitTorrent traffic, will be frowned upon.
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The Copyright Office recently held its triennial hearings on exemptions to the Digital Millennium Copyright Act’s prohibition on circumventing technical protection measures for copyrighted works.  The Office is charged under the DMCA with issuing exemptions for specific classes of works where non-infringing uses will be adversely affected by the prohibition.  For most of the classes of works under consideration this year, it seems the Copyright Office would be in familiar territory, focusing on users’ ability to read, view, listen, or interact with creative works.  However, with one class—cell phone unlocking—the questions raised seem more at home in telecommunications and network neutrality policy than copyright policy.

The Office is reconsidering an exemption it granted in 2006 that protected individuals from liablity for breaking a firmware lock on a cell phone and using it on another phone network. At that time, no one opposed the exemption in time for their objections to be considered; this time, CTIA – The Wireless Association, Virgin Mobile, and others have voiced opposition, in part because of copyright-related concerns, but primarily to preserve a business model built around recouping hardware subsidies that some argue limits consumer choice.

While it’s true that phone–network locks do protect copyrighted firmware, I have a hard time seeing a compelling copyright interest in their use.  There is hardly a market for such firmware independent of the handsets themselves that circumvention would undermine.  Moreover, the 2006 exemption narrowly applies to those cases when the circumvention is only accomplished to use a phone on a particular network that it has been locked out of.

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The Cybersecurity Act of 2009, S. 773, introduced by Senators Rockefeller (D-WV) and Snowe (R-ME), has kicked off what promises to be an intense debate over the federal government’s cybersecurity policy.  There’s broad consensus about the goal – better security for both governmental and private sector critical infrastructure information systems – but not much agreement about how to achieve it.

The Rockefeller/Snowe bill includes some especially troubling provisions.  For starters, it would give the President the authority to limit or shut down Internet traffic to federal government and private critical infrastructure systems.  It would give the Secretary of Commerce the power to override any law, regulation, or policy – including privacy laws and laws protecting trade secrets – to obtain access to information held by private parties that might be relevant to cybersecurity threats and vulnerabilities.  Broadly read, the provision would authorize the Secretary of Commerce to override the Wiretap Act and the Electronic Communications Privacy Act to gain access to communications content. Finally, it includes provisions that would allow the government to dictate software design standards for the private sector.

CDT has prepared a detailed analysis of the Rockefeller-Snowe bill here.

Fortunately, the Rockefeller/Snowe bill isn’t the only game in town.

Senator Carper’s (D-DE) U.S. Information and Communications Enhancement (ICE) Act (S. 921) takes an entirely different, and much more appropriate, approach.  It focuses primarily on strengthening the security of governmental information systems by amending the Federal Information Security Management Act.  In contrast, many provisions of the Rockefeller-Snowe bill would apply the same measures and authorities without distinction to both private and public systems.

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Americans are accustomed to flat-rate, all-you-can eat pricing plans for Internet service. The appeal is obvious; nobody wants to feel that the meter is running with each moment spent online, or that he or she has directly wasted money each time a Web site or YouTube video turns out to be sillier or more pointless than expected.  Earlier this month, popular backlash forced Time Warner Cable to abandon its test of pricing plans that would have given customers monthly usage volume allotments and imposed surcharges for exceeding them.  Opponents of the usage fees organized online, Congressman Eric Massa promised legislation to ban such usage fees, Senator Charles Schumer got involved, and this week Free Press wrote a letter to the House Commerce Committee urging congressional scrutiny.  Clearly, usage caps are controversial.

But it would be a big mistake to jump to the conclusion that usage-based pricing for Internet service is automatically harmful and should not be allowed.  It all depends on where the volume thresholds are set and what the price is.  Certainly usage caps that are set artificially low could be a tactic to protect a cable company’s core video offerings from competition from online video.  And yes, surcharges could be designed to impose overall rate hikes; a New York Times article on the subject this week was headlined “As Costs Fall, Companies Push to Raise Internet Prices,” and arsTechnica noted that Time Warner Cable’s offering of 100 GB per month was a “textbook overreach” given that Comcast offers 250 GB per month for $42.95. 
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