Video: Equality For All On The Web?

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msnbc.com contributor
updated 10/6/2009 9:08:18 AM ET 2009-10-06T13:08:18

A move toward major changes in the Internet's operation has gained sudden momentum this month, led by FCC chairman Julius Genachowski.

The changes — which could affect the Net's cost, availability, speed, innovativeness and investment potential — are lumped under the vague but highly charged phrase "Net neutrality." They're generally applauded by consumers and content providers like Netflix, Google, PayPal and YouTube. But they are viewed with caution, and even alarm, by some cable, DSL and wireless Internet providers including Comcast, AT&T and Verizon Wireless.

On Wednesday, Genachowski plans to enter the lions' den, perhaps providing more details in a speech to CTIA, the trade group that represents the wireless industry, at a meeting in San Diego.

In that speech, "we'd like to hear the key recognition that wireless is really quite different from other broadband providers in its capacity limitations and its innovation," said Chris Guttman-McCabe, a CTIA vice president.

That could happen. In his most important speech yet on Internet neutrality, Genachowski recently praised wireless carriers for their recent openness.

But he also said, "The principles I've been speaking about apply to the Internet however accessed,” which includes a growing number of Americans using the mobile Internet from their phones.

At its most basic level, Net neutrality is about how American broadband providers may affect Internet use. Until now, they have been subject only to guidelines, which lack the force of law. Genachowski is leading the drive to formalize and put teeth into those guidelines.

At stake, as the FCC sees it, is the Internet's very future.

"We can see the Internet's doors shut to entrepreneurs, the spirit of innovation stifled, the full and free flow of information compromised," Genachowski said in a Sept. 21 speech at the Brookings Institution, a Washington, D.C., think tank.

"Or we can take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas."

Genachowski, appointed by President Barack Obama, has made Internet regulation a priority, part of implementing a national broadband, or high-speed Internet, plan by Feb. 17.

That plan, mandated by the American Recovery and Reinvestment Act of 2009, is designed to ensure every U.S. citizen has access to broadband and to create ways of checking progress toward that goal.

During his Sept. 21 speech, Genachowski cited four principles of longstanding broadband policy he intends to turn into law, added two more and reassured broadband providers that rulemaking — the transformation of principles into law — will proceed in a fact-based, case-by-case, data-driven fashion.

"We will do as much as we need to, and no more," he promised.

That pledge was meant as a reassurance to those generally opposing Net neutrality: the broadband and Internet service providers that connect people to the Internet using cable, phone lines, wireless networks or satellites that they own or lease.

They tend to oppose FCC regulation of the Internet, insisting it will actually discourage innovation and suppress competition as well as private investment.

On the other side are equipment makers, public interest groups and providers of online content, goods and services. They tend to favor FCC intervention, though as minimally as possible.

'Seeing breaks and cracks occur'
The Net neutrality idea is endorsed by the Open Internet Coalition, whose members — among them the ACLU, Google, Sony Electronics and the American Library Association — agree with the FCC chairman’s assessment of how the Internet has changed since its government defense and science origins as ARPAnet 40 years ago.

"It was intended to be future-proof," Genachowski said. Now, though, "we're seeing the breaks and cracks occur, and they threaten to change the Internet's fundamental architecture of openness."

Genachowski provided no examples of those problems, but Open Internet Coalition spokesman Eric London gave some.

"AT&T censored a Pearl Jam concert in August 2007 because it disagreed with the content," he said. "Verizon Wireless blocked text messages from the National Abortion and Reproductive Rights Action League in September 2007. To us, those are the cracks that are appearing."

AT&T had called the incident a mistake, as did Verizon Wireless, which said it wouldn't happen again.

London might also have cited Comcast's allegedly covert throttling back of data-sharing traffic from file-sharing service BitTorrent. The FCC, invoking guidelines — which lack the force of law — insisted Comcast eliminate that practice. Comcast has appealed the FCC's action, arguing it exceeded the agency's authority.

London also refuted assertions by several ISPs' senior executives that content providers are getting a free ride and should pay to fund the networks.

"They're already paying billions of dollars to connect to the Internet," he said.

One advocacy group contends ISPs are making widespread use of a technology called deep-packet inspection that lets them suppress, or "shape," selected traffic without detection, thus increasing bandwidth with no additional infrastructure cost.

Though shaping in some form may be necessary to prevent congestion, at least it should be acknowledged and as minimal as possible, the group urges.

Favored by Amazon.com, Netflix
Net neutrality is especially important to companies like Netflix and Amazon.com, which offer movies over the Internet, and to Skype, which offers VoIP (Voice over Internet Protocol) telephone service. Those bandwidth-intensive services compete with broadband providers' own video-on-demand movies and phone service.

Under the new rules, an ISP — say, Comcast — would be forbidden from streaming movies it sold to consumers at faster speeds than those the consumer bought from a third party like Netflix or Amazon.com.

Also affected by Net neutrality are high-bandwidth providers like Hulu, which streams TV shows into consumers' homes, and BitTorrent, which allows sending and receiving huge, uncompressed files containing movies or music.

Conceivably, Net neutrality could gain providers the legal right to slow down such big consumers of bandwidth during peak congestion periods, allowing them to resume at full speed when congestion eased.

It could also lead to clear, accurate statements from providers about the upload and download speeds customers can actually expect, rather than the general and often hyperbolic numbers currently bandied about.

Internet as delivery system
Another virtue of Net neutrality, supporters say, is that the FCC would gain the ability to regulate the entire Internet as a delivery system, rather than having to regulate it based on each separate technology, such as wireless vs. DSL vs. cable.

Genachowski made it clear in his September speech that the principles he enunciated "apply to the Internet however accessed . . . though how the principles apply may differ depending on the access platform or technology."

Yet the cellular carriers, which provide Internet connectivity wirelessly for phones, laptop computers and personal devices, say they should be treated differently than other broadband providers. Above all, CTIA said it's concerned by Genachowski saying rulemaking is needed because of limited competition among broadband providers.

"Unlike the other platforms that would be subject to the rules, the wireless industry is extremely competitive, extremely innovative and extremely personal," said Guttman-McCabe.

Any rules affecting wireless broadband would have to be general and flexible to keep up with rapid change in the wireless arena, he said.

Otherwise, the rules might discourage emerging wireless applications that the CTIA believes will be critically important, including traffic management, health care monitoring and energy conservation.

Mobile users also might find their bandwidth squelched, as a result, said Guttman-McCabe, which could affect Web browsing and streaming video.

Concept started in 2005
The Net neutrality controversy began in 2005, following a Supreme Court ruling in the “Brand X” case, which said cable companies are exempt from some regulations governing phone companies and so needn't share their infrastructure with competing ISPs.

"Until then, just like phone companies can't block calls based on their content, that was how ISPs were viewed," said the Open Internet Coalition's London.

The ruling led to repeated attempts to provide protection to data equal to that given to phone conversations. But those have failed every year .

The six principles behind Net neutrality will likely become law by spring. Because three of the FCC's five commissioners, including Genachowski, are Democrats, the majority vote needed to take each step of rulemaking is considered assured.

The first step, called notice of proposed rulemaking, is set for the commissioners' vote at the FCC's monthly meeting Oct. 22. If it passes, the FCC will begin a comment period of 30 to 60 days, during which it welcomes reactions to the detailed proposals it has put forward.

A reply comment period of equal length will follow, and possibly a second round of both comments and reply comments, though that's considered unlikely in this case.

Then the final rules, as modified because of the comments, are issued as an order with the force of law, and the commissioners vote on whether to adopt the order.

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