Democratic win could herald wireless Net neutrality

SAN JOSE, Calif.--If you thought that federal regulators were upset at Comcast's throttling of BitTorrent, wait until they start scrutinizing what wireless providers are doing.

Comcast's offense was merely to slow or abort some BitTorrent transfers. AT&T Wireless goes much further and flatly bans all "peer-to-peer file sharing" and "downloading movies." Verizon Wireless' terms of service also single out P2P applications.

If those restrictions applied to wired Internet connections, there would have been Federal Communications Commission proceedings, congressional hearings, and plenty of outrage, real or feigned. Wireless providers' network management policies, on the other hand, have mostly been left alone--a situation that left-leaning groups are hoping that an Obama administration will help them remedy.

"That regulatory disparity is going to become a problem when we go forward and it ought to be addressed right now," Ben Scott, policy director of media advocacy group Free Press, said at the Wireless Communications Association's conference here Thursday.

Scott, one of Washington, D.C.'s most vocal proponents of Net neutrality and broadband regulation, said he thinks it's time to take aim at wireless providers. "They're not different," he said. "That's the basis of the argument that I'm trying to make. They're not different technologies. They're all running on IP. They're all providing access to the Internet. The only question...is what is reasonable network management."

The Bush administration has taken a dim view of Internet regulations in the form of Net neutrality rules, warning last year that they could "inefficiently skew investment, delay innovation, and diminish consumer welfare, and there is reason to believe that the kinds of broad marketplace restrictions proposed in the name of 'neutrality' would do just that, with respect to the Internet." A report from the Federal Trade Commission last year reached the same no-new-laws-needed conclusion.

Don't be surprised if the situation changes under the Obama administration. President-elect Barack Obama told CNET News during the campaign that "I will take a backseat to no one in my commitment to network neutrality." He said the same thing while campaigning, although focusing on the relatively narrow issue of some Web sites paying more for faster connectivity than others. In addition, some Democratic politicians like Rep. Ed Markey of Massachusetts have slammed AT&T's exclusive iPhone deal, and even introduced legislation to prohibit it.

Now, the disclaimers: Obama's statements were general and not specific enough to figure out what his administration will actually do. Some once-vocal Democratic proponents of Net neutrality, like House Speaker Nancy Pelosi, seem to have lost interest in the topic in the last few years. And everyone in Washington officialdom is waiting to see what happens with Comcast's court challenge to the FCC's order before they draft new bills or regulations.

One argument for exempting wireless networks from the sweep of Net neutrality rules is that the size of the (virtual) pipes is so much smaller and that one person can more easily clog a wireless network than wired broadband. Another is the larger number of competitors in the wireless world, at least when compared with residential customers' typical options of DSL or cable.

"How do you address things like tele-medicine or alarm monitoring or VoIP or gaming or whatever tomorrow's flavor" will be, Christopher Guttman-McCabe, vice president for regulatory affairs at the CTIA wireless trade association, said during a panel discussion Thursday. "Setting a hard and fast rule is something that doesn't take into account (changes in technology). That's why I'm troubled at memorializing something very specific."

Guttman-McCabe and representatives of AT&T, Free Press, and Google spoke on a panel--Disclaimer: I moderated it--and at least initially said that they have reached a kind of detente.

There's "not as much that divides the folks up here as we thought," said Richard Whitt, Google's Washington telecommunications counsel. "It's easy to have the wrong impression of where folks are coming from. We didn't always feel that was the case" that AT&T supported the goal of an open Internet. (It didn't help that AT&T's chief executive once said Google was getting a "free ride" on his network.)

AT&T's Jim Cicconi, a senior vice president, acknowledged his employer supported the FCC's Net neutrality assault on archrival Comcast. But he said that AT&T's newfound enthusiasm for broadband Net neutrality doesn't mean such rules should be extended to wireless.

"With wireless, you have exactly the opposite" as wired broadband connections, Cicconi said. "You have uber-competition. I'm hard put to see the case for regulation in the wireless space where I think it's even weaker."

Wireless Net neutrality is not exactly a novel idea. One proposal emerged in the form of a working paper (PDF) by Columbia University law professor Tim Wu published in February 2007, which says that wireless carriers "should be subject to the same core network neutrality principles."

Wu argued that the rise of the wireless industry has led to "carriers aggressively controlling product design and innovation in the equipment and application markets, to the detriment of consumers. In the wired world, their policies would, in some cases, be considered simply misguided, and in other cases be considered outrageous and perhaps illegal."

Skype, which is part of eBay and would dearly love to be a bigger part of the mobile market, made similar arguments in a petition (PDF) it submitted to the FCC last year. It says that carriers are trying to "limit subscribers' right to run software" and that any device must be allowed to connect to the network--something that the FCC decided was permissible in a landmark 1968 ruling against AT&T.

The FCC has not ruled on Skype's request, and FCC Chairman Kevin Martin said in April that he would oppose it. But a Democratic-dominated FCC may be more inclined.

Earlier in the day, Martin spoke at the conference with Google co-founder Larry Page. "There are ways to manage your network without having to look at particular applications or types of applications," Martin said, adding that he'd like to prohibit "the network operators limiting where people can go on the Internet or what content they have access to."

Although Google has been a Net neutrality supporter, Page spent much of his time talking about unlicensed white spaces instead. On Tuesday, the FCC approved opening up unused broadcast TV spectrum for unlicensed use. This 300MHz to 400MHz chunk of unused spectrum known as "white spaces" is considered beachfront real estate for wireless broadband services because frequencies in this range can travel long distances and penetrate walls.

Page said that on unlicensed wireless, "if the U.S. does the right thing, then a lot of other people will take that into account very strongly. You're likely to see a worldwide thing happen." He also acknowledged that better wireless connectivity means more search users, and Google's ability to make a "significant amount" more, even 20 percent to 30 percent.

Page said the uses of that portion of the spectrum may follow the path that Wi-Fi took: increasingly cheap chips, uses that nobody could have foreseen, and some free and some pay networks.

"Having an unlicensed regime that works through walls well is going to be tremendously useful," he said. "I think the debate is whether it's going to be really useful or really, really, really useful."