Critics of a network neutrality proposal released by Verizon Communications and Google have complained that it would exempt wireless broadband and managed services from enforcement, but the biggest departure from recent practices may be its proposed major limits on the US Federal Communications Commission's authority.
Google and Verizon have recommended substantial limits on the power of the FCC to enforce and create net neutrality rules. Proposals to limit the FCC's authority in the area aren't new - Verizon proposed some limits on the FCC's broadband authority back in 2005, and a handful of Republican lawmakers have also introduced legislation to limit the FCC's ability to create new net neutrality rules.
But those efforts haven't received wide support, particularly from net neutrality supporters. Google's support of limits on the FCC's power has other net neutrality supporters crying foul after they long believed they had an ally in the Internet giant.
"The agreement is even worse than previously thought, as it would remove rulemaking authority from the FCC and force them to give deference to a technical body," said Gigi Sohn, president of digital rights group Public Knowledge. "To have Google give in like this at the 11th hour is hugely disappointing."
Supporters of new net neutrality rules have thought that the FCC was moving forward. The FCC, which issued a proposal for net neutrality rules in October, has been hosting a series of private meetings on a compromise since June, but the agency cancelled additional meetings after news reports last week that Google and Verizon would release their own proposal.
The Google/Verizon proposal would prohibit broadband providers from "engaging in undue discrimination" against any legal web traffic. The recommendations would also give the FCC authority to enforce the net neutrality, or open Internet, principles laid out by Google and Verizon on a case-by-case basis, even though the US Court of Appeals for the District of Columbia Circuit seemed to reject a case-by-case approach taken by the FCC in an April ruling. In that case, the FCC had attempted to prohibit Comcast from slowing peer-to-peer traffic on its network.
The Google/Verizon proposal would also give the FCC the authority to fine broadband providers up to US$2 million for "knowing violations" of the net neutrality rules, after the appeals court decision raised questions about the agency's fining authority. The FCC asked for comments on its authority to fine broadband providers in a notice of inquiry on broadband regulation released in June.
The proposal, however, would encourage groups with net neutrality complaints to first seek resolution from unnamed Internet community governance groups, and the FCC would be required to "give appropriate deference" to the decisions of those groups before taking action.
The proposal also calls for an end to the FCC's rulemaking authority over net neutrality, meaning it would take an act of Congress to change the rules.
Several critics focused on the proposal's limits on FCC authority. "This pact would turn the Federal Communications Commission into a toothless watchdog, left fruitlessly chasing complaints and unable to make rules of its own," Free Press, MoveOn.org and three other groups said in a statement. "This is not real net neutrality."
The proposal's recommendation that Internet industry organisations address net neutrality disputes before the FCC doesn't make sense, added Sherwin Siy, deputy legal director at Public Knowledge. "The agreement outsources the FCC's powers and authorities to the very industries these rules are supposed to oversee," he said in a statement.
Much of the criticism of the Google/Verizon proposal has focused on its exemptions of managed services and wireless broadband from net neutrality rules, but the recommendations don't break new ground in those areas. Net neutrality advocates have opposed efforts to exclude wireless broadband and managed services from net neutrality rules, but proposals to do so have been floating around Washington, DC, for several years.
The FCC, in its October proposal for formal net neutrality rules, questioned whether managed services, such as Internet Protocol-based voice and video services, and wireless broadband should be subject to the same rules as wireline broadband.
Much of the Google and Verizon proposal would depend on congressional action, including recommendations to create formal net neutrality rules, give the FCC authority to fine broadband providers and prohibit the FCC to make new rules. With midterm elections in November, there's little chance of net neutrality legislation moving forward this year, and longer-term prospects are mixed at best.
Lawmakers have introduced bills to create net neutrality rules dating back to 2006, and none have passed, even after Democrats, generally supportive of net neutrality regulations, took over the majority of Congress in 2007. And it's likely that Democrats will lose seats in both chambers of Congress in the November elections.
The Google/Verizon proposal could slow down efforts at the FCC to reclassify broadband as a regulated, common-carrier service and create formal net neutrality rules, some critics said. FCC Chairman Julius Genachowski called for the agency to reclassify broadband in May, following the appeals court decision in the Comcast case.
"Some will claim this announcement moves the discussion forward," Michael Copps, a Democratic member of the FCC, said in a statement. "That's one of its many problems. It is time to move a decision forward - a decision to reassert FCC authority over broadband telecommunications, to guarantee an open Internet now and forever, and to put the interests of consumers in front of the interests of giant corporations."
So far, there have been few people stepping forward to support the Google/Verizon proposal. Spokespeople from both companies didn't respond to messages Tuesday morning seeking clarification of some details.
The Information Technology and Innovation Foundation, a tech-focused think tank, applauded the proposal, however.
The two companies have created a "very useful starting point" for Congress on net neutrality and FCC authority, said Rob Atkinson, ITIF's president.
"In most respects, the framework captures the consensus that exists across the Internet ecosystem to the effect that case-by-case review of Internet business practices is preferable to overly-prescriptive rules," Atkinson added. "The framework preserves network competition and protects consumers and innovators from undue discrimination, but also allows network operators considerable latitude to manage their networks in a way that assures the quality of the user experience."
Grant Gross covers technology and telecom policy in the US government for The IDG News Service. Follow Grant on Twitter at GrantusG. Grant's e-mail address is [email protected]