Wireless gets a free pass on net neutrality

Throttle away, mobile broadband providers! This morning, FCC Chairman Julius Genachowski provided a preview of the network neutrality rules his agency has drafted which will go to a vote on December 21. While the rules do call for a ban on “unreasonable discrimination” on wired networks, wireless operators get to do what they like, as long as they are upfront about it and don’t absolutely block traffic.

Genachowski began his speech by making the case that he was simply following in the footsteps of past Republican commissioners Kevin Martin and Michael Powell, both of whom supported some open Internet principles (though neither made these into rules). According to Genachowski, “we’ve seen clear deviations” from key openness principles by ISPs over the last few years, even after the FCC adopted its famous Internet policy statement back in 2005. There are now “real risks” to the Internet’s openness, and Genachowski wants to address them with a few basic principles.

First: Transparency. Consumers have a right to know basic information about how networks are managed, and stripping away some of the secrecy surrounding this management means that problems can be addressed before they escalate to something the FCC must deal with.

Second: No blocking. Internet users can send and receive lawful Internet traffic of their choice using any device of their choice.

Third: Discrimination must be “reasonable.” While the rule against blocking traffic is clear-cut, the new (and sure to be controversial) antidiscrimination rule will only bar “unreasonable” discrimination. How this plays out in practice remains to be seen, of course; will ISPs have broad authority to prioritize voice, but slow down peer-to-peer networking? Even the much-criticized private principles agreed to by Google and Verizon adopted such an approach, but it had so many gaping loopholes that it was clear, even from the way it was written, that it would be toothless.

Fourth: Network management. ISPs need incentives to run their networks, and we want those networks to be the “freest and fastest in the world.” Therefore, “reasonable network management” will be allowed in order to deal with harmful traffic, congestion, and other network problems. Again, we’ll need to wait for the rules to see what might count as reasonable and what might not, and who decides.

It turns out that the principles above apply only to wired networks. The FCC has accepted the wireless industry’s much-mouthed argument that “wireless is different.” To that end, the proposed rules would only apply the first and second principles to wireless networks; unreasonable network management and discrimination are no problem, but the FCC says it will “monitor” the broadband market and may change its rules when it matures.

As for the legal authority to do all of this, Genachowski indicated that he has no plans to reclassify broadband under Title II of the Communications Act, but will attempt to implement the new rules under the FCC’s existing arrangements.

“We have a sound legal basis for this approach,” he insisted, though it’s a basis sure to be tested in court and probably challenged by Congress, where Republicans are already firing verbal warning shots across Genachowski’s bow. GOP Commissioner Robert McDowell is not a big fan, either. “I strongly oppose this ill-advised maneuver,” McDowell said in a statement. “Such rules would upend three decades of bipartisan and international consensus that the Internet is best able to thrive in the absence of regulation.”