Are we edging toward Net neutrality detente?

Google-Verizon deal rumors seem to have crashed negotiations to resolve a legal stalemate. Signs, however, point to real progress toward a lasting solution, Stanford Law fellow Larry Downes argues.

Editors' note: This is a guest column. See Larry Downes' bio below.

The news is coming fast and furious in the battle over Net neutrality. After rumors began to circulate on Wednesday of a separate peace accord between leading combatants Google and Verizon Communications , the Federal Communications Commission suddenly announced on Thursday that it was concluding meetings aimed at resolving the regulatory logjam it had been holding since June with major stakeholders.

While Google and Verizon, partners in wireless service for Android telephones, acknowledge long-standing discussions, both are also denying any specifics of those talks, or of the existence of any agreement that may be in development.

The lack of details, however, didn't stop an outpouring of frantic hostility to whatever might be in a Google-Verizon accord by the remnants of a rapidly unraveling Net neutrality coalition.

As rumors of the discussions were first surfacing, for example, Public Knowledge President Gigi Sohn issued a statement on Wednesday, saying, "The deal between Verizon and Google about how to manage Internet traffic is deeply regrettable and should be considered meaningless." Josh Silver, president of media reform group Free Press, headlined his Huffington Post article this morning as such: "Google-Verizon deal: The end of the Internet as we know it."

News of a possible deal, along with a violent response from Net neutrality advocates, now seems to have crashed ongoing negotiations among stakeholders and the FCC to resolve both a legal stalemate and rising tensions with Congress. On Thursday, FCC Chief of Staff Edward Lazarus released a statement saying the effort "has been productive on several fronts, but has not generated a robust framework to preserve the openness and freedom of the Internet."

The battle for detente
What's going on here? Has Google become the most recent Net neutrality advocate to switch sides, joining Microsoft and Amazon.com, among others? Is the FCC now left standing alone against efforts to undermine basic principles of Internet access? Are Internet consumers being carved up as spoils of war?

Hardly.

In fact, it's just the opposite. The Google-Verizon discussions are another positive sign that real progress is being made toward a meaningful, lasting solution to the Net neutrality debate, raging off and (mostly) on since 2007. Over the last few months, consensus and collaboration have broken out among a wide range of Net neutrality combatants.

Despite the end of FCC talks announced Thursday, there's still real hope that the nondiscriminatory principles of the open Internet will be embraced in meaningful, enforceable ways by everyone involved, preserving the "Internet as we know it" for future generations of users.

Despite the end of FCC talks announced Thursday, there's still real hope that the nondiscriminatory principles of the open Internet will be embraced in meaningful, enforceable ways by everyone involved, preserving the "Internet as we know it" for future generations of users.

The sudden enthusiasm for a neutrality detente appears to have been sparked by FCC Chairman Julius Genachowski's announcement in May of plans to "reclassify" broadband Internet access as a common-carrier service. Broadband Internet access today is largely unregulated as an "information service" under the Communications Act of 1996. As a common-carrier "telecommunications service," however, broadband would be subject to extensive regulatory oversight by the federal (and perhaps state and local) government.

Genachowski's dramatic decision was, in turn, motivated by a federal appeals court decision earlier this year. In Comcast v. FCC, the D.C. Circuit rejected the FCC's argument that its "ancillary jurisdiction" over broadband Internet gave it authority to sanction cable Internet provider Comcast for violating the agency's longstanding Net neutrality policy statements. ( Comcast had admitted to throttling the high-volume file sharing of some of its customers who used the BitTorrent protocol, a practice it agreed to discontinue.)

The FCC's defeat in the Comcast case raised concerns that the agency's effort to codify Net neutrality into enforceable rules was dead in the water. (The neutrality rulemaking, which began in October 2009 soon after Genachowski was confirmed as chairman, is still pending.) The reclassification of broadband was seen as a way of regaining authority over Net neutrality without the need for Congress to grant the FCC authority the court said it didn't have.

In initiating the reclassification process in June, Chairman Genachowski tried to temper its potential impact by offering to "forbear" from applying some of the most onerous requirements of common-carrier status, an approach he referred to as the "third way" option .

But the proposal still represents a radical shift in the FCC's largely hands-off approach to the Internet. The third way was perceived as an excessive response to the Comcast decision, one that would dangerously expand the FCC's oversight of Internet access and basic network services. A chorus of complaints was raised not only from network operators but also by unions, technology companies, and minority advocacy groups.

Even leading neutrality proponent Google, which strongly encouraged the original rulemaking, was uncharacteristically tepid in cursory comments filed last week on the proposed reclassification. Google offered unenthusiastic endorsement for the third way, and it warned the FCC "that going beyond the third way effectively would eliminate any benefits gained from light-touch regulation and instead could create detrimental impacts to broadband access networks, as well as the individuals and entities that rely on them."

Perhaps most disappointing for Chairman Genachowski, the reclassification proposal has been condemned by a growing bipartisan majority of Congress. In a letter from 74 House Democrats, for example, congressmen urged Genachowski to reconsider, noting that "the expanded FCC jurisdiction over broadband that has been proposed and the manner in which it would be implemented are unprecedented and create regulatory uncertainty."

Signs of thaw in the Net neutrality cold war
Still, whether by design or accident, the reclassification proposal appears to have brought the combatants in this fight to the negotiating table. Well beyond whatever Google and Verizon may agree on privately, the usually quiet D.C. summer has seen an explosion of diplomacy in the Net neutrality war, the most encouraging of it echoing well beyond Washington.

The first sign of improved conditions for peace began at FCC headquarters. Chairman Genachowski, who asked in the reclassification proposal for all sides to "put rhetoric and posturing aside and work together," tasked his chief of staff with organizing a series of stakeholder meetings.

According to FCC disclosures, those attending the meetings included senior representatives from AT&T, Verizon, the National Cable & Telecommunications Association, Google, Skype, and The Open Internet Coalition (whose membership includes Free Press and Public Knowledge). Since June, the frequency of these meetings steadily increased until Thursday, though no details of the discussions have been revealed.

There have also been reports of stakeholder meetings with the chairmen of the House and Senate committees that have direct oversight of the FCC.

The real goal of these meetings appears to have been the crafting of a more tailored legislative solution to the neutrality problem. Congress has been considering Net neutrality bills for years but has never been able to move any of them out of committee. Until Genachowski's appointment by pro-neutrality President Obama, in fact, it was assumed that any solution would require new FCC authority from Congress.

An engineered solution, at last?
Those meetings have now been concluded, apparently without resolution.

But there are other signs of progress. Beyond the beltway, leading Net neutrality advocate Amazon.com made news recently when Vice President Paul Misener, in a CNET guest column, rejected calls for "radical" solutions, pro and con , to the Net neutrality problem. Misener proposed instead what he called a "win-win-win" solution, one that would work for network operators, consumers, and content providers, "without compromise."

That solution, which he noted was today normal practice, would "prohibit harmful discrimination among content but also [allow] network operators to provide performance enhancement on equal terms, so long as it does not degrade the performance of other content."

Perhaps the most encouraging development was the formation in June of the Broadband Internet Technical Advisory Group . BITAG, whose initial membership includes network operators, along with leading content providers such as Microsoft and Google, will work "to develop consensus on broadband network management practices or other related technical issues that can affect users' Internet experience."

While political solutions to Net neutrality ebb and flow, BITAG offers the hope of a technical solution to the Net neutrality problem. It is also the most promising avenue to resolve complicated problems of network management, once and for all.

Self-regulation, designed and enforced by committees of engineers, has been the model by which the standards and protocols that make up the Internet have been maintained from the beginning.

The same kind of voluntary technical and business oversight is the best hope for lasting peace in the Net neutrality war. At its core, Net neutrality has always been a technical problem. But over the last several years, as conversations about its solution have been poisoned by the unproductive rhetoric of politicians and lawyers, a lasting, efficient resolution has only gotten farther away.

Now, at last, it appears that the same Silicon Valley entrepreneurs who created the Internet's wildly successful ecosystem are stepping up to ensure its continued health.

That's why it's no surprise that some of the most vocal proponents for and against legislated solutions to Net neutrality are showing signs of desperation, even as a solution appears to be emerging.

If peace breaks out, lobbyists on both sides, as well as advocacy groups whose real agenda is to enlarge government oversight of all forms of media, stand to lose everything. The more constructive the negotiations, the more the scary monsters they have built around Net neutrality are being revealed as mere phantasms.

Ghosts built of hot air are evaporating. Only their creators will miss them.

 

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