Thursday, December 9, 2010

Genachowski Offers Pretend Net Neutrality Proposal

Genachowski Offers Pretend Net Neutrality Proposal
David Dayen
Wednesday December 1, 2010

As if there weren’t enough things going to pot today, the FCC has decided to come out with a proposal to pretend to institute net neutrality regulations.

In a speech he plans to give Wednesday in Washington, Julius Genachowski, the F.C.C. chairman, will outline a framework for broadband Internet service that forbids both wired and wireless Internet service providers from blocking lawful content. But the proposal would allow broadband providers to charge consumers different rates for different levels of service, according to a text of the speech provided to The New York Times.

Mr. Genachowski has decided not to use the commission’s telephone regulatory powers to govern broadband Internet service, a move that he proposed in May that would potentially open Internet service to heavier government regulation.

His proposal would also allow broadband providers to manage their networks to limit congestion or harmful traffic.

I don’t know how you could call this net neutrality at all. Broadband providers could charge different rates for “faster” service; they will not be subject to common carrier regulations on their product; and they can “manage their networks,” which is precisely the point of net neutrality. You can’t block content, but if you can “manage” it, you can essentially slow it out of existence.

I’ll go with Marvin Ammori on this one; we have garbage masquerading as net neutrality.

It exempts wireless. Like the Google-Verizon proposal, Julius’s makes an artificial distinction between accessing the Internet through a wire and through a wireless connection. No nondiscrimination rule applies to wireless. The Chairman’s fig leaf is to ban “blocking” on wireless, but not discrimination [...]

The proposal may not ban paid-priority. A ban on paid priority is central to any real net neutrality proposal, beginning with the Snowe-Dorgan bill of 2006. Indeed, the notion of “payment for priority” is what started the net neutrality fight; in late 2005, AT&T’s CEO said that Vonage and Google had to stop using his pipes for free. The only way a carrier could charge for priority is if basic Internet access was not sufficient for a company to compete; if Yahoo! does need priority to compete effectively, why pay? Without a ban on paid priority, we can expect basic access to deteriorate so companies have to pay for priority [...]

There may no jurisdiction for any of this anyway. In April, the D.C. Circuit interpreted Title I of the Communications Act narrowly, severely curtailing the FCC’s ability to adopt rules for Internet access [...] After a month of studying the question, the FCC General Counsel concluded the obvious: relying on Title I authority after that case was irresponsible and doomed to failure. The Chairman made a video explaining how the FCC should rely on authority under Title II, which is something that several Justices of the Supreme Court (including Scalia) thought the FCC should have done from the beginning. The Chairman described reclassifying to Title II as the principled center, but without principle, the center keeps shifting.In the proposal, the FCC will not reclassify.

So this is a pretend net neutrality proposal, which has all the problems of the status quo if not more, and which is still drawing fire from Republicans because it pretends to call itself net neutrality. They keep pushing from the right, but in reality this proposal would be a gold mine for the telecoms.

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