Net neutrality rules for broadband died last year, but now Google and its old allies are pushing for similar rules on wireless networks.
As part of a congressionally mandated switchover to digital television broadcasts, the federal government is preparing to auction off a generous chunk of the 700MHz broadcast TV band by early next year. Wireless companies are eager to bid on it because its signals can travel farther and easily penetrate walls--qualities that lend themselves to widespread, wireless broadband networks.
But a key question, set to be discussed at a Senate Commerce Committee hearing on Thursday morning, is whether open access rules--a close cousin of last year's legislative tussles over Net neutrality--should be levied on at least some of the companies that win licenses through the auction. In charge of deciding that point is the Federal Communications Commission, which is still finalizing its rules for the proceeding.
That has led to a renewal of old alliances. On one side are last year's Net neutrality proponents, including liberal advocacy groups, wireless technologists and companies like Google, which say that federal regulators must step in and impose "open access" rules. Otherwise, they claim, only a few powerful companies will control this prized chunk of spectrum.
On the other side are the telecommunications giants such as AT&T that blocked extensive Net neutrality rules in the House of Representatives and the Senate last year--and are invoking the same free-market arguments a second time. An AT&T filing with the FCC, for instance, says one Google proposal should be rejected because the market will determine how spectrum should be used.
Advocates affiliated with the pro-Net neutrality Save the Internet lobby group wrote in a recent letter to the FCC: "If the FCC simply gives the highest bidder exclusive rights over the new airwaves, phone and cable companies could become permanent gatekeepers of the airwaves--continuing their record of keeping new competition and innovation out of the marketplace."
Google has also been pressing the FCC to reserve a portion of that spectrum (the 722-728MHz band) to be used primarily or exclusively for broadband communications. Final comments on that proposal were due on Wednesday. (Google did not answer all questions posed by CNET News.com about its auction stance on Wednesday, but a representative did send a statement saying, "the FCC should be adopting flexible rules that encourage competitive entry by new and innovative broadband companies.")
Participants in the broader open access effort include the advocacy groups Public Knowledge, MoveOn.org and the Media Access Project, along with Craigslist founder Craig Newmark and Stanford Law School professor Lawrence Lessig. More than 250,000 people submitted comments to the FCC calling for an "open, accessible and affordable" Internet, the group says.
Also in the open access camp is Frontline Wireless, a start-up backed by major Silicon Valley venture capitalists that has proposed a controversial plan to build a public safety network on those airwaves.
Old alliances reunite
Although their individual positions differ on some points, they all generally want the FCC to guarantee that at least a portion of the new spectrum is made available at "fair-market" wholesale prices to anyone who wants to use it. They also want regulators to require that users have the freedom to connect the devices of their choosing to the network, so long as they abide by a "do no harm" mantra.
"This would be a way of getting people who might not be able to afford to bid on spectrum to get into the game," said Art Brodsky, a spokesman for Public Knowledge.
It would also prevent more powerful companies from "warehousing" valuable unused spectrum that could be used by competitors to provide additional services, his group and its allies have argued.
Some groups would like to take the open access idea even further. A group of 15 wireless industry entrepreneurs led by Virgin Mobile USA co-founder Amol Sarva is asking the FCC to set aside one sixth of commercial spectrum as an open "sandbox," where smaller entrepreneurs and inventors can play with new ideas without having to get permission from one of the "big four" network operators--AT&T, Verizon Wireless, Sprint Nextel and T-Mobile.
"Having to engage with the Big 4 at each cycle in the process can slow time to market and increase risks and costs for the entrepreneur," the group, Wireless Founders for Innovation Coalition, said in a letter to the FCC (PDF) last week.
It's unclear how those ideas will fare before the FCC. The agency's two Democratic commissioners have tended to be sympathetic to stricter regulations imposed on network operators, but the remaining three Republicans have long maintained further regulations aren't necessary. The commission has already adopted a set of four broadband connectivity principles, which state, among other things, that network operators must generally allow their subscribers to connect the devices and browse the content they wish.
The open access proposals have also encountered fierce resistance from the wireless industry and from politicians with free-market leanings.
On the eve of the Senate's hearing, six Republican senators sent a letter to FCC Chairman Kevin Martin, urging the regulators to resist "encumbering rules which suppress interest in the auction," such as open access and Net neutrality mandates.
"There are few markets in America that are more competitive, vibrant and innovative than wireless," said Joe Farren, a spokesman for CTIA-The Wireless Association, which represents major wireless companies. "The last thing we need to do is upend that very successful marketplace by imposing 1970s-style regulatory mandates upon it."
Farren pointed to the example of Apple's iPhone and its collaboration with AT&T to see that the market is working just fine without added regulations. And besides, no one's stopping the companies that favor the "sandbox" idea or other regulations from bidding in the auction themselves, Farren added. (Google, for example, says it's not sure whether it will be participating in the auction.)
"Go to the auction like everybody else does, bid on the spectrum, and if you have a great business plan and if you think that plan is going to work in the marketplace, go for it," he said. "But don't try to get a government regulation passed to protect your so-called business plan. That's certainly not the free market at work."
Net neutrality through the back door
The spectrum has also generated new talk of enacting Net neutrality regulations, which would prohibit network operators from prioritizing any Internet devices or services and from making deals with outside companies to provide priority access in exchange for extra fees.
By contrast, major broadband providers in the telephone and cable industries say they deserve the right to manage their networks as they wish and to charge fees as they see fit to offset the costs of new, more advanced equipment.
But such carriers, particularly in the wireless sector, have a poor track record for giving consumers the choices they're looking for, consumer groups argue. "Absent regulatory changes that would require wireless networks to operate in a neutral manner and permit subscribers to attach devices to their networks, it seems remarkably unrealistic to assume that any of the national incumbents will change their behavior," they wrote in a letter to the FCC.
A 2008 presidential hopeful said he's also on board with the idea. In a letter to FCC Chairman Kevin Martin late last month, former Democratic North Carolina Sen. John Edwards urged the regulators to set aside as much as half of the spectrum for wholesalers who can lease to smaller start-ups that would be willing to build broadband networks in rural and underserved areas. He also said they must require anyone who wins control of the spectrum to adhere to nondiscrimination rules, allowing consumers to hook up the devices and browse the Web sites they wish.
Google, for its part, said it's skeptical that the spectrum auction alone will assuage concerns that dominant network operators will become gatekeepers capable of squeezing out smaller or shallower-pocketed content providers. Company telecommunications and media counsel Richard Whitt argued in the search giant's most recent FCC filing that regulators shouldn't write off the need for Net neutrality rules on a broader level because of what he called "a significant lack of effective broadband competition in this country."