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An essay on Network Neutrality

Axel Spies, a friend and a brilliant Washington-based high-tech lawyer just sent me this paper on Net Neutrality in the US. A must reading.

Net neutrality continues to be fiercely debated in the United States. The new Democratic FCC leadership has committed to expanding and enhancing existing net neutrality restrictions. The current FCC Chairman, Julius Genachowski, recently announced that he will initiate a rulemaking to codify the FCC’s existing network neutrality principles. Those principles, originally set forth in a 2005 “Internet Policy Statement,” declared that to “encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to:”

* access the lawful Internet content of their choice.
* run applications and use services of their choice (subject to the needs of law enforcement).
* connect their choice of legal devices that do not harm the network.
* competition among network providers, application and service providers, and content providers.

The Chairman has publicly stated that he plans to propose a fifth nondiscrimination principle that would prohibit broadband providers from discriminating against particular Internet content or applications. However, providers would be able to offer “managed services” in some limited contexts. A sixth principle of “transparency” is also debated to require broadband Internet access providers to disclose network management practices.

The FCC’s informal announcement stirred the ongoing debate over the extent to which broadband and other network providers will maintain control over their networks, free from government restrictions, to “manage” their networks, including the ability to block or slow certain traffic, for the benefit of all users. Proponents of a “neutral” network, including Google, Yahoo!, eBay, consumer rights, free speech advocacy groups, and generally the three Democratic FCC commissioners (Chairman Genachowski, Copps and Clyburn), are concerned that without government rules, service providers will act anticompetitively by restricting content, sites, or platforms, on the kinds of equipment that may be attached to the network, and on the modes of communication allowed. In contrast, Internet Service Providers (ISPs), incumbent local exchange carriers (ILECs), including AT&T and Verizon, some cable providers, such as Comcast, free market advocacy groups and generally the two Republican FCC Commissioners (McDowell and Baker) oppose net neutrality obligations.

Earlier legal rulings regarding net neutrality fell short of setting forth a comprehensive policy. The FCC embedded some net neutrality policies in conditions placed on the Verizon/MCI and SBC/AT&T merger approvals. In 2008, the FCC, then led by Republican Kevin Martin, sought to enforce the Internet Policy Statement principles on cable TV provider Comcast when allegations arose that Comcast had blocked consumers from using several peer-to-peer applications. That decision is currently being debated in a federal court appeal. In addition, the FCC principles are currently being imposed on recipients of broadband stimulus funds. “

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