Net Neutrality Will Score a Net Win in Congress

The DC federal court of appeals didn’t actually bring about the death of Net neutrality. Hopefully, all it’s done is bring about the death of the phrase “Net neutrality.”

I write about technology, and I’m already tired of hearing those words and writing them. Not the concept behind it, mind you, or the implications for broadband development, “pipes” management, thorny regulatory issues involved or the politics that pit an activist FCC against a corporate giant. All that continues to be ripe material for a tech columnist, and I look forward to seeing how this all plays out in Congress.

And rest assured, it will resolve there. But my advice for any representative or senator willing to pick up the mantle of “Net neutrality”: Avoid that now-cliche like … well, you know … a botnet-enabled plague.

The words are now not only fraught with political baggage that can be used in a Drudge Report headline denoting overbearing government interference or a Huffington Post piece about big business messing with your downloads; they also just sound too damn geeky for anybody’s good. Ideological stereotypes, like pirated movie files, flow freely in the media canals of the Internet, so why play into that anymore? Call it “Net equality,” “high-speed freedom,” “I can’t drive 55 (Mbps),” whatever. Just stay away from the chamber of commerce-style (or in this case, government-approved) labels.

Congressional Fortification

The federal court has actually done everybody with a dog in this particular high-speed hunt a big favor. The FCC had only the flimsiest of excuses for trying to regulate what Comcast did with its data traffic management regarding BitTorrent files in 2007. The commission can indeed just vote to bring ISPs like Comcast under its purview, but the appeals court specifically stated that Congress has never given the FCC the statutory authority to do that. So Congress should step in and make it happen, especially with the Obama administration and the Democratic majority still basking in the glow of a healthcare reform victory.

FCC General Counsel Austin Schlick provided lawmakers with some handy political cover Wednesday with a post on the agency’s broadband.gov blog. The court’s ruling, Schlick admitted, “undermines the legal approach the FCC adopted in 2005 to fulfill its statutory duty of being the cop-on-the-beat for 21st century communications networks.”

The ruling, he added, won’t affect most of the National Broadband Plan announced in March. However, the parts of the plan that it does affect, according to Schlick, are aimed squarely at constituencies and issues that are the stuff of both recent and longstanding Democratic talking points:

“Among them are recommendations aimed at accelerating broadband access and adoption in rural America; connecting low-income Americans, Native American communities, and Americans with disabilities; supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation; lowering barriers that hinder broadband deployment; strengthening public safety communications; cybersecurity; consumer protection, including transparency and disclosure; and consumer privacy.”

The FCC is looking into how it will play its next hand, Schlick wrote. Hopefully, someone in Congress will beat the agency to it — without using the “N” words.

Small-Business Impact

Wait a second — what about that part regarding “robust use of broadband by small businesses to drive productivity, growth and ongoing innovation?” As a recent entrant into the entreprenurial sweepstakes thanks to a new marketing-related business venture — one that makes Web video, social media and access to unfettered broadband pipeage a key part of its business plan — I can actually say I have a vested interest in this particular outcome.

Recuse myself? Get a life — or better yet, download yourself one. I asked a couple of advocacy players in this debate if small/medium-sized businesses, who are relying more and more on cloud-based services and high-speed access, see Comcast’s (temporary) win over the FCC as a good or bad thing. What if an ISP decides to slow things down because a business is getting a lot of download requests for video, apps or whatever? Comcast and others providers have said the pipes don’t know what’s in the traffic; they just know there’s too much of it. Hence, network management techniques.

There will be little impact on small businesses from Comcast vs. FCC, according to Ryan Radia, technology policy analyst with the free market-leaning Competitive Enterprise Institute. “Instances of discrimination by Internet providers against particular applications or Internet destinations are historically rare, and many of America’s largest providers have already stated publicly that they remain committed to the non-discrimination,” he said. But have they given consumers enough proof that they’ll abide by that?”Strange as it may sound, the Net neutrality debate really isn’t about whether network discrimination is desirable or not. Rather, its about whether network management should be up to network operators or government bureaucrats. To be sure, neither ISPs nor FCC regulators are perfect. But as history shows, ‘bad’ market participants are disciplined by newcomers, fueled by dynamic and unpredictable technological change.”

The FCC, in the minds of commissioners, has few limits on its powers, Radia argued, and it’s a roll of the digital dice to put small businesses in the path of those future decisions.

In this corner, we have David Sohn with the Center for Democracy and Technology, which favors Net you-know-what. He agrees that enterpreneurs are putting a lot on the line with cloud-based apps and blazing-fast pipes that allow them to start up their companies much faster, and cheaper, than they could 10 years ago. They must keep doing that “without needing to get permission or cut deals with major network operators,” Sohn told me. “The FCC was moving to adopt rules that would guarantee that large network operators will not chip away at this uniquely entrepreneur-friendly structure. (The) court decision now creates a significant roadblock in the FCC’s effort.”

Those small businesses must now pin their hopes on either Congress or the FCC to find a way out of this, or “the Internet of the future may require entrepreneurs to seek deals with big network operators serving as gatekeepers, rather than just rolling out new services to see what will catch on with users.”Well, you could call it “cutting a deal.” Or you could call it what Comcast calls it now: Comcast Small Business, part of its Business Class service, with special rates for phone/internet/TV bundles ranging from US$99 to $159, not including installation charges that could run you $99 or $199, depending on length of service. If I need something a little more robust to float my entrepreneurial boat, I can always go with Amazon Web Services or Microsoft Azure.

The point is that competition for providing small-business infrastructure and services is already out there, but it all still relies on ISP pipes and routers to be effective. ISPs are clearly in the telecom game, not just residing in the information systems silo that the Bush-era FCC placed them in a few years ago. And that also means Google, if it gets its fiber network experiment up and running, would also be subject to the same regulatory structure. But right now there is little structure to speak of, so Congress needs to clarify the authority for the FCC in the matter of this whole Net n——–y thing.