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Wednesday, February 13, 2008

Net News : New Net neutrality bill frowns on ISP 'favoritism'

Comcast, AT&T, and other network operators would be expected to refrain from "unreasonable discriminatory favoritism" of content on their pipes under a recrafted Net neutrality proposal introduced Wednesday in the U.S. House of Representatives.
But this time around, the new bill (PDF) sponsored by Rep. Edward Markey (D-Mass.), chairman of a House Internet and telecommunications panel, isn't directly forcing Internet service providers to follow specific rules. The new bill is an apparent effort to be less prescriptive than his previous efforts, which failed in a Republican-dominated Congress two years ago.

"The bill contains no requirements for regulations on the Internet whatsoever," Markey said in a statement upon introducing the bill. "It does, however, suggest that the principles which have guided the Internet's development and expansion are highly worthy of retention, and it seeks to enshrine such principles in the law as guide stars for U.S. broadband policy."

Rep. Charles "Chip" Pickering (R-Miss.), who has argued against Net neutrality regulations in the past, is now co-sponsoring the rewritten measure, which is being called the Internet Freedom Preservation Act.

The modified approach is an apparent attempt to address the howls of protest from network operators, who have argued that previous Net neutrality bills in Congress amount to unnecessary Internet regulations.

The old bill decreed that broadband operators have certain duties: not blocking or degrading content, not prioritizing some applications over others, and not imposing "surcharges" for premium placement, to name a few. Violators would have been subject to penalties. A pending Senate bill, which hasn't yet seen any action in this session of Congress, takes a similar approach.

The new Markey-Pickering bill, by contrast, proposes adding four broadband policy statements to existing federal communications law. Those statements build upon a set of broadband policy principles that the Federal Communications Commission adopted years ago, including recommendations that the government allow consumers to reach the lawful content and applications of their choice and hook up whatever devices they please, provided that they don't harm the network.

Violation of those principles would not carry any penalties under the new bill, according to a Markey aide. The bill does, however, leave open the possibility of tougher rules later. One principle dictates that the government should to adopt and enforce "baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet."

The bill would direct the FCC to study broadband providers' current practices and whether "enforceable" rules governing Internet openness are necessary. The FCC would also be required to stage at least eight public "broadband summits" at "geographically diverse locations" around the United States to discuss the state of competition, consumer protection, and consumer choice in broadband.

The bill's introduction arrives amid a recent stepped-up focus in Washington on network management practices. The FCC is weighing whether it's "reasonable" for companies to slow down peer-to-peer traffic on their networks, as Comcast has admitted to doing in what it argues is an attempt to keep all its subscribers surfing smoothly.

The same consumer advocacy groups that support Net neutrality legislation have asked the FCC to declare that such practices aren't, in fact, "reasonable," and should be forcibly stopped.

The FCC also announced on Tuesday that it's holding a February 26 public hearing at Harvard Law School in Cambridge, Mass., to hear from experts on network management issues.

Fans of Net neutrality laws--including, Google, and a number of consumer advocacy groups--support Markey's latest proposal, heaping praise on the new language before the congressman had even formally introduced it. They have long argued that without strong Net neutrality principles enshrined in law, there will be nothing to stop network operators from, say, charging YouTube additional fees to be delivered to consumers faster than a rival video-sharing Web site.

Network operators, by contrast, have long opposed Net neutrality regulations because they argue that they need the freedom to manage their networks as they see fit and that new obligations could discourage investments in building out their pipes.

Scott Cleland, the chairman of, a group whose members include all the major cable, telephone, and wireless companies, said Markey's new approach doesn't blunt those concerns. While the "letter" of the new Markey bill may not include those new regulations, he said, the "spirit" of it does, creating the same heartburn for opponents as the earlier version.

Updated at 9:53 a.m. PST: Comcast declined to comment on the measure, and cable industry representatives were not immediately prepared to comment.

The U.S. Telecom Association, which represents large Internet service providers like AT&T and Verizon Communications, blasted the new bill. Group president Walter McCormick said it would "blindly legislate a new national broadband policy, without regard to its implications, and then require the FCC to spend the next year determining whether the Internet is being constructed, managed, and operated in conformance with this new government mandate."
Comcast Responds To Claims Of Network Discrimination
WASHINGTON -(Dow Jones)- Comcast Corp. (CMCSA) told a federal regulator that its decision to block users from popular network sharing software was due to a small number of customers hogging too much bandwidth on its broadband network.

The company launched its defense Tuesday against allegations that it had prevented broadband Internet customers from using certain software applications, in violation of so-called network neutrality principles.

Wednesday marks the deadline for submissions to Federal Communications Commission investigators looking into allegations made against Comcast by several public interest groups and software companies.

At issue is to what extent Internet service providers like Comcast can interfere in the traffic that flows over their networks in order to ensure the majority of customers have a satisfactory Web-surfing experience.

The specific allegation made against Comcast is that it blocked or slowed down some customers' access to a file-sharing software called BitTorrent.

File sharing allows individuals to share user-generated and other content over the Internet.

In its filing to the FCC, Comcast argued that a small number of customers use bandwidth-heavy applications like BitTorrent to the detriment of the majority of its customers.

A "very small number of broadband users employ certain (peer-to-peer) protocols that utilize immense amounts of bandwidth in ways that are unpredictable and inconsistent and that can threaten to overwhelm network capacity and harm the online experience of other users," Comcast said in the filing. "That is why, even with continuous upgrades and constant investment, the fact remains that network capacity is not - and never will be - unlimited."

The Federal Communications Commission has established four principles on network neutrality. Republican Chairman Kevin Martin has argued they are sufficient to safeguard against abuses by network operators.

"The FCC has repeatedly said it has the ability to enforce its policy statement in this area," said Markham Erickson, executive director of the Open Internet Coalition, an umbrella of public interest groups and high-tech companies. "This is the first major test case on whether the FCC will be able to do that."

For its part, BitTorrent argues that it is no longer a niche software used by a small number of individuals.

"This is a very scripted response from a company that is behaving like a monopoly," said Ashwin Navin, president and co-founder of BitTorrent.

Navin said that in an average month, there are 40 million users of its software globally, a fact he said refutes Comcast's argument that the issue is about a small number of people using software applications like it.

Marvin Ammori, general counsel at the public interest group Free Press, said network operators like Comcast are facing the reality that the Internet hasn't developed how they thought it would.

He said that when Comcast was building the bulk of its network, it bet on the fact that most of the traffic would be downstream, or into customers' households, rather than the other way.

But as file-sharing applications grow in popularity, Internet service providers are having to fall back on network management as a way to ensure their networks don't collapse under the weight of customer-generated content, said Ammori.

"Because people want to use the Internet in ways Comcast didn't plan for, they are trying to prevent them from doing so," said Ammori.

Comcast is not alone in its argument that network management is an essential practice.

In its filing to the FCC investigation, AT&T Inc. (T) urged the commission not to consider laying down prescriptive rules about what constituted reasonable management.

"The Internet exists in a uniquely volatile technological environment, and engineers must have the flexibility to address the constantly changing demands on their networks...with a full toolbox of network-management techniques," said the company's submission.

Time Warner Cable Inc. (TWC) said that it supported Comcast's arguments regarding network management, although it didn't engage in any blocking or slowing down of traffic itself.

The company recently announced that it would consider starting to charge higher fees to heavy bandwidth users later this year, in an attempt to govern the flow of traffic over its network.

The FCC must decide if Comcast's practice violates its four principles, and if so, whether it will penalize the company. It must also determine if its principles are robust enough to guard against future abuses.

It had announced on Thursday its plans to hold a hearing at Harvard University to consider testimony from various experts about broadband network management practices. Public interest groups cheered this announcement as evidence the commission is taking the situation seriously.

It may be too early to tell whether the Comcast situation will mushroom into the kind of network neutrality debate that dominated Washington in 2006.

But it is notable that lawmakers are paying attention. Rep. Edward Markey, D- Mass., the powerful chairman of the House Telecommunications Subcommittee, is believed to be preparing to introduce legislation that addresses the network neutrality issue.

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