Tuesday, September 22, 2009


FCC announces internet proceeding

FCCFCC Chair Julius Genachowski, delivered a speech to the Brookings Institute yesterday and he proposed adding two new principles to the FCC's internet freedom principles: non-discrimination and transparency.

It is quite likely that you will read excerpts from the speech that will fail to include some of the qualifying language he had regarding non-discrimination:
This means they [network operators] cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.

This principle will not prevent broadband providers from reasonably managing their networks. During periods of network congestion, for example, it may be appropriate for providers to ensure that very heavy users do not crowd out everyone else. And this principle will not constrain efforts to ensure a safe, secure, and spam-free Internet experience, or to enforce the law. It is vital that illegal conduct be curtailed on the Internet. As I said in my Senate confirmation hearing, open Internet principles apply only to lawful content, services and applications -- not to activities like unlawful distribution of copyrighted works, which has serious economic consequences. The enforcement of copyright and other laws and the obligations of network openness can and must co-exist.
FCC Chair Genachowski also called for the principles to apply to all forms of internet access, including mobile, but he also recognized that "how the principles apply may differ depending on the access platform or technology."

Keep in mind that these are proposals - the FCC will be expected to issue a notice of proposed rulemaking to invite public consultation in fleshing out the details. As yesterday's speech indicated, there will be an open process to figure out how to implement these principles. This speech is simply the first step in a long process: FCC to create and publish a Notice of Proposed Rulemaking; open consultation; deliberation; ruling.
While my goals are clear -- to ensure the Internet remains a free and open platform that promotes innovation, investment, competition, and users’ interests -- our path to implementing them is not pre-determined. I will ensure that the rulemaking process will be fair, transparent, fact-based, and data-driven.
As I have written a number of times in the past, the US doesn't have an equivalent of Section 27 in its Telecom Act, so non-discrimination isn't enshrined in their environment absent a new explicit rule. Canada benefits from technical neutrality in its legislation, leaving the US to play catch-up.

Transparency was a key issue raised by many parties in Canada's Internet Traffic Management Proceeding. Improving the information of users has been an issue around the world and we can expect to see improved disclosure by all service providers driven by the marketplace, if not regulation.

With the CRTC's ruling on traffic management expected before the end of the year, Canada will continue to lead its neighbours to the south in defining an internet regulatory framework.

"As I have written a number of times in the past, the US doesn't have an equivalent of Section 27 in its Telecom Act, so non-discrimination isn't enshrined in their environment absent a new explicit rule. Canada benefits from technical neutrality in its legislation, leaving the US to play catch-up."


Are you arguing that s.27 is the Canadian equivalent to the FCC's no-discrimination principle in that it prohibits TSPs from discriminating based on application, or category of application e.g., BitTorrent - P2P (net service), Skype - VOIP (wireless service)?

For those who are new to the subject: currently a debate exists in Canada as to whether s. 27(2) applies to discrimination by application e.g., BitTorrent. Most say it does not.

Telecommunications Act: http://bit.ly/RI1sB
Unjust discrimination
27. (2) No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

The other provision of note is s. 36
Content of messages
36. Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

From my research and experience, there are groups who argue ss. 27(2) & 36 should protect against application discrimination, but no government authority has (as of yet) adopted this interpretation. Thus, some groups argue for further legislative reform. For example:
- summary of "net neutrality" private members' bill: http://bit.ly/Bwft9
- text of the bill: http://bit.ly/DUbPu
BoingBoing beat you to it by a few hours, Mark. As one of the loudest blogs on the net banging the Net Neutrality drum, you can be assured that many people will read exactly these passages.

We don't yet know the direction the CRTC will take us with their traffic management hearings. We will either take a big step forward or backward, depending on whether the CRTC rules current management activities illegal or legal, respectively.
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