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Google, Verizon lay down a marker on net neutrality

August 9, 2010 | 12:58 pm

Despite nearly a year's effort, negotiators for Google and Verizon have crafted a framework for net neutrality that fumbles one of the central issues involved in the debate: the principle of non-discrimination. That's why the proposal is more likely to be just another talking point than a major breakthrough in the debate among network operators, Web companies and consumer groups.

Proponents of net neutrality rules -- a category that ostensibly includes Google -- want to stop Internet service providers from picking winners and losers among content and service providers online. The theory is, there's not enough competition among broadband providers in many parts of the country to rely on market forces to prevent ISPs from abusing their position as potential gatekeepers.

The would-be rulemakers face a number of non-trivial challenges, including how to differentiate between "good" network-management activities (e.g. filtering out spam) and "bad" ones (e.g. blocking a competitor's Internet telephone service). Nor is it easy to craft rules that still allow ISPs to innovate and do not discourage Wall Street from investing in them.

The compromise struck by Google and Verizon ...

...embraces a few of the net neutrality principles that Federal Communications Commission Chairman Julius Genachowski laid out last year. In particular, it explicitly prohibits ISPs from preventing their users from sending and receiving the lawful content of their choice, running lawful applications and services and connecting their choice of compatible devices to the network, and it requires ISPs to disclose their terms and practices clearly.

But the companies wrapped layers of nuance around the most hotly contested of the FCC's proposed principles: that ISPs not discriminate against content, applications or services. Under the Google-Verizon framework, ISPs could not engage in "undue" discrimination against lawful content or services. Prioritization of traffic, other than prioritizing general types of traffic based on their latency, would be presumed to be improper unless the ISP showed that it didn't cause "meaningful harm to competition or to users." Yet the exceptions for "reasonable network management" are broad and vague, most notably the one for service quality.

Beyond the fuzzy contours of the non-discrimination principle, the companies' framework allows an explicit exception that could defeat the rule. ISPs would be permitted to offer services on their networks that are free from the non-discrimination requirements. For example, they could reserve a portion of their bandwidth for a toll lane that delivers selected companies' content or services in a better manner than the plain-vanilla Internet does. Verizon could add a Gmail channel with no size limits on the files sent from user to user, or a YouTube channel with full-screen videos in higher definition than YouTube otherwise offers.

Some public-interest groups reject the idea of ISP toll lanes out of hand. I don't, as long as there's some mechanism to prevent such efforts from crowding out regular broadband service. Again, with competition so weak among wireline ISPs, there needs to be a check against broadband providers' letting their Internet offerings wither while they devote an increasing amount of bandwidth to the "managed" services that allow them to collect from websites as well as subscribers.

The Google-Verizon plan would offer no real protection on that front. Instead, it calls on the FCC to issue a report if its findings that the new services "threaten the meaningful availability of broadband Internet access services." That's no enforcement power, just the ability to summon a few headlines and hope Congress will respond. And that seems more than a little quixotic, given how hard it has been for Congress to act on net neutrality.

The framework also takes pains to stop anyone but Congress from adopting any kind of rules regarding broadband services. It would give the FCC exclusive authority to oversee broadband, but that authority wouldn't extend to rulemaking. It could only act on complaints brought against ISPs on a case-by-case basis.

The other significant exception carved out by Google and Verizon would be for wireless networks, which would have to comply only with the transparency requirement. The companies said this carve-out was based on the "unique technical and operational characteristics" of wireless networks and the "competitive and still-developing" nature of wireless broadband. It's true that wireless networks have less bandwidth than wireline ones do, but it's not clear why it makes more sense to let them block or degrade selected bandwidth-heavy applications than to have them charge people more when they consume excessive amounts of data. The former is ripe for anti-competitive abuse -- consider how many mobile carriers block Skype, or AT&T's erstwhile efforts to block Sling while permitting the carrier's partners to transmit video.

-- Jon Healey

Healey writes editorials for The Times' Opinion Manufacturing Division.

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