What the Google-Verizon proposal really says

The framework is no more and no less than an offer of peace in the raging Net neutrality war, issued by two of the leading combatants, argues Stanford Law fellow Larry Downes.

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

The Google-Verizon Net neutrality proposal , announced on Monday during a conference call with Google CEO Eric Schmidt and Verizon Communications CEO Ivan Seidenberg, at last puts to rest swirling rumors of a private treaty between the two parties to divide up the Internet and its users.

The reality is, thankfully, much more modest. The two companies have issued what they call a "legislative-framework proposal" for Net neutrality, with the hopes of breaking the legislative logjam that has paralyzed policymakers.

The framework is no more and no less than an offer of peace in the raging Net neutrality war, issued by two of the leading combatants. Although some mainstream media sources and Net neutrality purists are continuing to describe the document as an "agreement," the proposal published Monday merely offers an outline for draft legislation. (The document, in keeping with terminology preferred by the Federal Communications Commission, uses the phrase "open Internet" rather than the more politicized "Net neutrality.")

It's important to emphasize that the proposal itself has no legal authority. While the two companies believe that adoption of their framework would preserve an open Internet without foreclosing future service options for network operators, the proposal does not commit either company--or anyone else--to adopt any of the recommendations laid out in the two-page document. (Seidenberg indicated that Verizon already abides by the open-Internet rules, as described in the framework, and would continue to do so.)

But as a sign of continued compromise and collaboration, the proposal sends a strong and positive signal.

It's perhaps no surprise to see a solution to the Net neutrality problem coming from Google and Verizon in particular. The two companies, partners in the Android telephone market, have been working together for more than a year to develop common ground on the contentious Net neutrality problem . Their mutual interest in solving the Net neutrality problem was no secret.

Tracking the FCC's proposed open-Internet rules
So, in some sense, there's very little news here. The proposal closely tracks a joint filing the two companies submitted to the Federal Communications Commission in January, as part of the agency's ongoing open-Internet rulemaking. In fact, what the two companies are proposing is very similar to the six new rules the FCC has been considering as part of that rulemaking.

The Google-Verizon framework would shore up the FCC's authority to enforce its open-Internet principles, without reclassification. It also supports the addition of two more neutrality rules, similar to those proposed by the agency in October.

Both the FCC's proposed rules and those described by Google and Verizon would prohibit network operators from blocking consumers from sending and receiving the lawful content or applications of their choice, or from restricting the connection of legal devices to the network.

Those rules, the heart of Net neutrality, reflect the original open-Internet policy statement adopted by the FCC in 2005. A court decision in April, however, called into question the FCC's authority to enforce those principles, leading to calls for the agency to "reclassify" broadband Internet access and bring it under the common-carrier rules currently in place for telephone service.

The Google-Verizon framework would shore up the FCC's authority to enforce its open-Internet principles, without reclassification. It also supports the addition of two more neutrality rules, similar to those proposed by the agency in October.

The additional rules prohibit network operators from discriminating against or prioritizing Internet traffic, perhaps for a fee from content providers ("nondiscrimination"), and require ISPs to publish their network management practices in language understandable to consumers ("transparency").

Although there is some difference in the definitions of "nondiscrimination" and "transparency" between the Google-Verizon proposal and the FCC's, the differences are not significant.

Despite the similarities between the Google-Verizon proposal and the FCC's pending rulemaking, Monday's announcement was met with near-hysteria. Groups including media reform organization Free Press and digital-rights interest group Public Knowledge, which both strongly support the FCC's proposed rules, were quick to demonize the Google-Verizon proposal. Free Press dismissed the framework as "fake Net neutrality ." Public Knowledge President Gigi Sohn characterized what she called "the agreement between Verizon and Google about how to manage Internet traffic" as doing "almost nothing to preserve an open Internet."

In part, these and other objections to the Google-Verizon framework take issue with features of the proposal that are identical to the FCC's pending rules. For example, both the Google-Verizon proposal and the FCC rules allow network operators to implement "reasonable network management" techniques, even if those would otherwise violate Net neutrality.

Both the Google-Verizon proposal and the FCC rules allow network operators to implement "reasonable network management" techniques, even if those would otherwise violate Net neutrality. Both approaches also recognize that some classes of Internet activity--including voice and video--already require and receive priority in order to maintain their integrity.

Both approaches also recognize that some classes of Internet activity--including voice and video--already require and receive priority in order to maintain their integrity. Giving priority to entire classes of content does not violate the Net neutrality rules, as proposed by Google-Verizon or the FCC.

Both the Google-Verizon and FCC proposals also make exceptions for what the FCC called "managed or specialized services." These are services that use Internet protocols and that travel over the same infrastructure as traditional Internet content, but they are services that network operators can offer consumer or business customers as separately paid and prioritized.

For example, Verizon and Comcast use the same Internet-based connection to customer homes to provide digital cable programming and digital telephone services. Under the Google-Verizon proposal, which refers to these as "differentiated" services, network operators would be excused from the nondiscrimination rule.

While some Net neutrality advocates immediately voiced strong objections to excluding these and future services (examples given on the conference call included 3D content and paid broadcasts of the Metropolitan Opera), these services are also excluded under the FCC's proposed rules.

There are technical, as well as business, reasons to distinguish "managed" services. As the FCC noted in October, "These services may require enhanced quality of service to work well. As these may not be 'broadband Internet access services,' none of the principles we propose would necessarily or automatically apply to these services."

Under both the Google-Verizon and FCC proposals, cable operators could continue to offer television programming based on private arrangements with broadcasters and other content providers. Future services, including Internet protocol-based private telemedicine or smart-grid technology, could also travel over the network operator's infrastructure without invoking the nondiscrimination rule.

Some notable differences
Objections to the Google-Verizon proposal do, however, include a few notable differences between Google and Verizon's view of Net neutrality and what the FCC is considering.

Most important, the Google-Verizon proposal would not apply the Net neutrality rules to wireless Internet access, with the sole exception of the transparency rule.

The Google-Verizon proposal would not apply the Net neutrality rules to wireless Internet access, with the sole exception of the transparency rule.

While the FCC rulemaking recognized that differences between wired and wireless networks "may require differences in how, to what extent, and when the principles apply," the agency still proposed to apply all six of its rules to wireless broadband.

The Google-Verizon proposal differs here not only from the FCC, but almost marks a distinct change in position for Google itself. In the January filing to the FCC submitted jointly by Google and Verizon, the companies noted that "Verizon and Google disagree about whether mobile networks should be part of this framework." Google thought they should, a belief the company put its money behind in bidding earlier for wireless spectrum only after the FCC agreed to apply the neutrality policies to the auction.

In response to the FCC proposal, however, wireless-network operators have complained loudly that already-overburdened 3G networks and the slower pace of deployment for additional infrastructure require them to limit or even ban some otherwise-lawful Internet content, including Internet videos and large-scale file sharing.

Today, Google appears to agree that distinct features of wireless broadband access make the imposition of Net neutrality more difficult--if only temporarily. The proposed framework notes that the "unique technical and operational characteristics of wireless networks," along with the "competitive and still-developing nature of wireless broadband services" make the application of Net neutrality unwise "at this time." (Congress and the FCC are currently working to free up additional radio spectrum for wireless broadband Internet and working with the industry to find new technologies to better utilize existing spectrum. The latter is an example of "reasonable network management" at work.)

The role of the FCC
The other significant difference between the FCC's proposal and the Google-Verizon framework has to do with the role of the FCC itself in implementation and enforcement of Net neutrality. Echoing the two companies' joint filing in January, the framework proposed on Monday encourages enforcement of the Net neutrality rules by industry groups and other technical advisory bodies, with the FCC seen as the arbiter of last resort.

As I noted last week , one of the most promising developments in the Net neutrality debate was the recent formation of the Broadband Internet Technical Advisory Group , of which Google and Verizon, along with other leading content providers and network operators, are charter members. BITAG's goal is "to bring together engineers and other similar technical experts to develop consensus on broadband network management practices or other related technical issues...including the impact to and from applications, content, and devices that utilize the Internet."

Under the Google-Verizon proposal, consumers or businesses with Net neutrality disputes would be encouraged to use such "Internet community governance initiatives" as a first line of defense, much as domain name disputes can be arbitrated by ICANN. The FCC would still be authorized to enforce the rules through individual adjudications, however, and could grant injunctive relief and fines up to $2 million for knowing violations of the principles.

Although some Net neutrality advocates object to this provision in the Google-Verizon framework, the FCC also proposed to resolve alleged violations of the Net neutrality rules on a "case by case" basis, in response to complaints filed with the agency. "Under such an approach," the agency noted, "we would evaluate the facts of particular cases against the principles codified in a general form, rather than crafting detailed rules."

The Google-Verizon proposal takes that idea one step further, making clear that the FCC would not be allowed to develop "detailed rules," even if it wanted to. What the two companies seem to have in mind here is that Congress would pass legislation to enact the proposed Net neutrality rules into federal law, and it would give the FCC the authority to enforce them, but not extend or enhance them.

Is Google joining the chorus opposing reclassification?
That would certainly solve the immediate problem created by the court decision denying the FCC authority to enforce its 2005 policy statement. And it would do so without resorting to the "nuclear option" of reclassifying broadband Internet access , which a growing bipartisan majority of Congress has already made clear to the FCC it does not approve.

Google now appears to be joining the chorus. In a recent FCC filing, the company was uncharacteristically noncommittal on the idea of reclassification . In the proposed framework, that noncommittal stance has moved to outright rejection. While the FCC, according to the framework, would have "exclusive authority" to "oversee" broadband Internet access, Google and Verizon propose that no regulatory authorities would be "permitted to regulate broadband Internet access service."

Rejection of the FCC's efforts to reclassify broadband may be the most significant feature of the Google-Verizon framework. While staying close to the FCC's proposed Net neutrality rules overall, the framework sensibly draws the line at giving dramatic new authority to the FCC that Chairman Julius Genachowski continues to pursue.

In that sense, the proposal from Google and Verizon is another important step in rescuing the Net neutrality crisis from the political cesspool and returning it where it belongs--a technical problem solved with technical solutions. For the most part, the two sides of the Net neutrality debate continue to move closer together, driven by a common fear of regulatory overreach by the federal government and the uncertainty it would unavoidably bring.

Almost everyone now seems to recognize that excessive government involvement in the Internet ecosystem would be a cure far worse than the illness it purports to treat. Let's hope that the FCC--and its friends in the White House and Congress--get the message.

 

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