THE BLOG
11/21/2009 05:12 am ET | Updated May 25, 2011

It's Day One For the Open Internet -- The Games Have Begun

Net Neutrality is a complicated-sounding term for something very simple. The companies that carry your Internet traffic shouldn't be allowed to play favorites. At its root, that's the deal. It's a concept that has been an integral part of communications (and transportation) law for more than 100 years.

And yet, the announcement today by FCC Chairman Julius Genachowski that he wants the basic concept of an open, non-discriminatory network to apply to access to the Internet was greeted by the big telecom companies and two FCC Commissioners as some sort of radical proposal that could upset not only the U.S., but the world. In fact, as Genachowski made clear, the Internet was designed to be open, was designed to make sure that telecom networks can't play favorites. His plan is elegantly simple: make the four "principles" the FCC has more or less followed for the past four years into formal, enforceable rules, and add two more- - forbidding carriers like AT&T or Comcast to discriminate against Web sites and require more transparency in how they operate their networks.

It has only been four years since the FCC unwisely decided otherwise, and set off the debate we now know as Net Neutrality. Since 2005, the FCC has shut down the traditional avenues for competition for Internet Service Providers, leaving the two-and-a-half network solution we have today. (Most wireless isn't considered fast enough to be considered "broadband," although that will change.)

The one, limited exception came in 2006, when AT&T bought out BellSouth, and the FCC imposed a temporary condition which prevented the new colossus from privileging, degrading or prioritizing any packets based on source, ownership or destination. Why make such a fuss over something so simple?

After all, President Obama is on board, as is House Speaker Nancy Pelosi. With House Commerce Committee Chairman Henry Waxman (D-CA) declaring his support for Net Neutrality legislation, the only key player on the House side not with the program is Communications Subcommittee Chairman Rick Boucher (D-VA). He was silent on today's events.

Commissioners Michael Copps and Mignon Clyburn also signaled their support.

In the debate here, it's vital to draw a difference between access to the Internet and the Internet. It's a line easily drawn. Ten years ago, users would hear this old squealing noise when dialing into a modem to reach the nascent Internet. Now, we just click an icon. It's that carriage which gets us to and from the Web site or other virtual destination that is the part of the ecosystem which has always been regulated, to one degree or another, for most of our telecommunications history. Cable got an unwise exemption, and wireless has never really been covered for Internet access. If the FCC is successful in what it does, both now will be making for the "regulatory parity" that telecom industries of all stripes say they want when regulation is imposed on one segment of the industry but not another.

As Genachowski said in his speech: "This is not about government regulation of the Internet. It's about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity, and entrepreneurial activity."

When it lifted the formal rules governing discrimination over networks, the FCC replaced them with a 2005 "policy statement" on Internet access, containing four principles that said consumers had the right to access lawful Internet content of their choice; run applications and services of their choice; connect devices of their choice; and are entitled to competition among network providers, applications, services and content. The Commission determined in August 2008 that those principles were enforceable, finding Comcast guilty of violating them by blocking traffic using the BitTorrent protocol.

Comcast has filed a lawsuit challenging the right of the FCC to enforce its principles, a fact which didn't find its way into a blog post by Comcast's chief lobbyist telling how good Comcast is at maintaining an open network. He made it seem like a petty disagreement, which it is not.

"The FCC has had a "policy statement" in place since 2005 that sets expectations for "openness" on the Internet. We support and honor those policies," Comcast Executive Vice President David Cohen wrote. So is Comcast withdrawing the lawsuit? Haven't heard that yet. (Nor did he mention Comcast's seat-packing trick at an FCC hearing, but that's another story.) At the time, Comcast "honored" the FCC principles as an alternative to legislation.

That "honor" for the principles is one of the arguments that the big telecom carriers are starting to roll out. AT&T said it "has long supported the principle of an open Internet and has conducted its business accordingly. We were also early supporters of the FCC's current four broadband principles and their case-by-case application to wired networks." It's true that AT&T supported the principles -- because they were needed for its takeover of BellSouth and, as with Comcast, were seen as a better alternative than legislation because AT&T could effectively gum up the works at the FCC by having a case-by-case setup without a formal rule behind it.

Where is AT&T today? Good question. At a panel discussion on Net Neutrality last November, AT&T's chief lobbyist, Jim Cicconi, said: "The same principals [sic] should apply across the board. As people migrate to the use of wireless devices to access the Internet, they . . . certainly expect that we treat these services the same way."

Now, however, Cicconi says that Net Neutrality shouldn't apply to wireless services: "We would thus be very disappointed if it has already drawn a conclusion to regulate wireless services despite the absence of any compelling evidence of problems or abuse that would warrant government intervention." But Genachowski had the right formula. There is only one Internet: "Even though each form of Internet access has unique technical characteristics, they are all are different roads to the same place. It is essential that the Internet itself remain open, however users reach it."

The carriers will argue that regulation will stifle investment, although figures show they are already stifling their own investment through lower capital expenditures, as Free Press documented in comments to the FCC.

This game is only beginning. Late Monday, Sen. Kay Bailey Hutchison (R-TX) floated an amendment sponsored by several senators, including her, from AT&T service territories that would prohibit the FCC from spending money to come up with Net Neutrality rules. It's an old and familiar back-door play -- trying to slip a small provision into a big spending bill. The latest is that the amendment won't be introduced -- now.

Everyone reading this has an interest in maintaining a free and open Internet. It's up to everyone to make that possible. The FCC has pointed the way, and set up a Web site, www.openinternet.gov, to let everyone participate. Do so, and let everyone know how important an open Internet is to everyone