Net neutrality: Back in the spotlight for debate

The debate over Net neutrality has reignited as broadband service providers hit the first deadline for applying for funds as part of President Obama's economic stimulus plan.

Thursday marked the first deadline for broadband service providers looking to get a piece of the $4.7 billion that will be doled out in the plan's initial phase. In total, Congress has authorized $7.2 billion as part of the Recovery Act to be used to bring high-speed broadband Internet access to consumers and business in areas of the country where service is not yet available or is too expensive.

Such a high number of broadband companies submitted online applications right before the initial August 14 deadline that the Department of Agriculture and Department of Commerce's servers were overwhelmed with the requests and the deadline was extended to August 20.

Many of the large broadband providers such as AT&T, Comcast, and Verizon Communications have decided not to apply for stimulus funds. While some of these companies, like Verizon, said months ago they would not apply for funds, some experts believe that stipulations announced in July requiring recipients to adhere to Net neutrality principles may have kept some of these big operators from throwing their hats into the ring.

Whether this is actually true is up for debate. But one thing is clear. The Net neutrality issue is back on the table and up for debate. And part of the reason is largely due to its inclusion in the broadband stimulus grant application.

"These debates are always moved forward when an event like this happens," said Harold Feld, legal director at Public Knowledge, a consumer advocacy group that supports Net neutrality legislation. "The debate around the stimulus funding helped focus attention on the issue."

There is no clear definition of the term "Net neutrality." But in general it refers to the concept that Internet users should have unfettered access to content and services. In other words, service providers should not be allowed to either impede or favor access to particular sites or applications. Most supporters agree that there should be two exceptions to this. One is that service providers should be able to block unlawful content like child pornography. And they should also be able to provide "reasonable network management."

The debate over Net neutrality began heating up about three years ago, when congressional leaders first started holding hearings on new laws to ensure that Internet service providers couldn't monkey with traffic. The discovery that the nation's largest cable operator, Comcast, had slowed down certain kinds of peer-to-peer traffic on its network fanned the flames and sparked public outrage over such practices.

But the fight to create new laws to protect Net neutrality languished after the Federal Communications Commission, which regulates the communications industry, publicly admonished Comcast for violating its Net neutrality principles. These principles aren't regulation and the FCC is somewhat powerless in imposing any real punishment for violating the rules, but the public slap on the wrist coupled with public outcry was enough to get Comcast to change its practices.

For many folks in the industry, the FCC's handling of the situation and the public response seemed to be sufficient. And support for passing new laws or regulation that might later have unintended consequences, appeared to wane.

Congress has already rejected at least five bills that would impose Net neutrality regulations.

Pressing for action
But during the presidential campaign, Net neutrality supporters got a lift when then-candidate Obama said he'd support Net neutrality regulation and laws. And now that he is president, these supporters are once again pushing for government action.

These supporters are also pressuring other politicians who said during their fall campaigns that they supported Net neutrality to actually do something about it. Just before the August recess, Reps. Edward Markey, a Massachusetts Democrat, and Anna Eshoo, a California Democrat, introduced another Net neutrality bill called the Internet Freedom Preservation Act.

This is the third time Rep. Markey has authored a bill to protect Net neutrality. In Markey's latest bill, he once again said he would make it illegal for a broadband ISP to "block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service to access, use, send, post, receive, or offer any lawful content, application, or service through the Internet." And as in previous bills, this one also allows for "reasonable network management" practices by ISPs. Bu it gives the FCC authority to determine what that means.

It's difficult to know how far Markey's new Net neutrality bill will get. But many advocates believe that tying Net neutrality to the stimulus funding was an easy way to get the issue back in the public eye.

Specifically, the Net neutrality clause in the stimulus application requires all applicants to agree to follow the FCC's fair Internet principles, which require ISPs to allow subscribers to use any devices and applications they like, without interference from the carrier.

For the most part, the traditional Internet operates in this fashion today. Broadband subscribers are able to connect any laptop, Netbook, wireless router, or any other device to any broadband network using either an Ethernet cable or some other type of connection, such as Wi-Fi. So far, there have been few instances of providers actually blocking or throttling applications.

But the wireless market is very different. In this market, every service provider controls which devices are on its network. And many carriers even dictate which phone functions can work on their network as well as which applications are allowed to work on their networks.

The popularity of Apple's iPhone, which is exclusively available on AT&T's network in the U.S., has highlighted this distinction. Not only is the iPhone exclusive to AT&T's network, which means it can't be freely used on another service provider's network, but the only way to put applications on the device is to download them from Apple's App Store. And Apple controls which applications get in the App Store and which do not, which means that consumers are not necessarily in control of which applications they can put on their phones.

The exclusion of certain applications, such as Google Talk--which allows users to use one phone number across any phone they own--from the iPhone App Store has recently ignited a firestorm of criticism. Because Google Talk is a voice over IP application that allows users to essentially bypass AT&T's voice network, many critics believe that AT&T had a hand in rejecting the application--and not for technical reasons, but for business ones.

Congressional leaders and consumer advocates use this as a prime example of why there needs to be Net neutrality laws and regulation to ensure that consumers are not blocked from accessing devices and applications they want use.

"Wireless has become the major focus now for Net neutrality," Feld said. "And that makes sense. As the mobile Internet becomes more mature, it is increasingly important that it operates with the same openness as the traditional Internet to stimulate innovation. Today, only a handful of network operators set the rules in wireless."

Wireless carriers argue that it's necessary for them to control which devices connect to their networks and which applications can be used, to ensure that the network operates properly. But consumer advocates and some lawmakers believe that wireless operators could be more open without sacrificing quality of service on their networks.

"Of course, you have to take into account the technical differences between wireless and traditional broadband networks," Feld said. "But you also have to distinguish an engineering concern from a business concern, so that these companies don't use the technical issues as an excuse not to be open."

Openness as a condition
The government has already begun forcing wireless operators to open up their networks a bit more. As a condition for winning some spectrum licenses in the 700MHz auction a couple of years ago, the FCC required the winner to agree to allow any device and any application to connect to its network. Verizon won this spectrum and has since detailed plans for its open network initiative.

The big difference between the provision in the FCC auction and the clause in the stimulus grant funding is that Verizon did not have to explain to the FCC how it would satisfy the openness requirement before getting the license. By contrast, applicants for the stimulus grant money were asked to detail their plans for keeping their networks open and neutral.

This is significant, because Verizon is the one that will define and interpret what openness should mean and not necessarily the FCC. So far, it appears that Verizon's interpretation of an open network is one where the company still certifies devices to be used on its network. But it has streamlined the process for certifying new devices to ensure they are accepted more quickly.

While the Net neutrality clause in the stimulus grant may be a bit stricter than the provision in the 700MHz auction, it hasn't deterred thousands of broadband service providers from applying for funds.

Companies, such as the prepaid-wireless provider Leap Wireless and 4G network provider Clearwire are among the applicants. Towerstream, a fixed wireless broadband provider that uses WiMax to provide service, has submitted applications for 17 markets for a total grant amount of $100 million to $120 million. Towerstream CEO Jeff Thompson said that the Net neutrality clause was not an issue for his company when it came time to apply for the grant.

We've already designed Net neutrality into our network," he said. "Part of the standard for WiMax defines quality of service. So we can schedule the packets to guarantee a level of service for our customers. And we don't have to discriminate against any traffic."

Public Knowledge's Feld agreed that the Net neutrality provision didn't seem to deter broadband providers who were truly in need of the extra cash to build their networks.

"Given that the first window for the broadband stimulus grants will be oversubscribed, I think it's fair to say that an awful lot of broadband providers feel like the conditions were not too strict," he said. "And I think it's clear that the ones who have traditionally turned their noses up to Net neutrality are not applying. But they probably didn't need the money anyway."