Title: Professors: FCC's net neutrality proposal is ambiguous Source: San Francisco Chronicle
[PopYard] http://www.popyard.com The U.S. Federal Communications Commission's recent decision to craft network neutrality regulations includes "ambiguity" in the proposed language that could allow broadband providers to skirt the rules, a group of tech-focused law professors said.
The FCC on Oct. 22 voted to move forward with a proceeding to establish net neutrality rules, but the agency's notice of proposed rulemaking
(NPRM) includes some imprecise language, said a letter sent Monday by six law professors, including Larry Lessig of the Harvard Law School, Tim Wu of the Columbia Law School and Jack Balkin of the Yale Law School.
The six professors, all supporters of net neutrality rules, wrote that the FCC proposal fails to specifically define what "reasonable" network management is and what "nondiscrimination" means. The definition of those two words will be at the center of any rules the FCC might eventually make.
One of the new proposed rules would require broadband providers to treat all lawful Web content, applications, and services in a "nondiscriminatory" manner, and all the rules would allow for "reasonable" network management. "Each of these two sides of the rule, however, has been described with what could be understood as an ambiguity at their center," the professors wrote. "Though surely unintentional, these sources of ambiguity appear likely to provide particularly generous opportunities to try to work around the Commission's efforts in this area."
The NPRM says that nondiscrimination means that a broadband provider can't charge a content, application or service provider for enhanced or prioritized access to subscribers, but the law professors suggested that definition is too narrow. Many net neutrality supporters have asked the FCC to make formal rules against broadband providers from selectively blocking or slowing some Internet traffic, but that isn't explicitly prohibited under the NPRM's definition of nondiscrimination.
"Is [the language] meant to specify all practices considered nondiscriminatory, or meant to be a definition that specifies that this particular practice will be considered nondiscriminatory without making a statement about other practices?" the professors wrote. "For our part, we presume that this language is meant to be a partial definition, based on the FCC's own stated policy goals."
In addition, the NPRM doesn't define what reasonable network management is, the professors said. Broadband providers have long said that net neutrality rules could hurt their ability to protect their networks against spam, malware and congestion.
The NPRM says the FCC will seek comment on reasonable network management, but "the question of what is and is not 'reasonable' is obviously key to the entire rule," the professors wrote.
The text of the proposed changes defines "reasonable network management" as "reasonable practices" at one point, the professors wrote. The NPRM could be read to suggest the FCC does not want a formal definition, they said.
"We think it is surprising that the FCC would not want to provide some guidance on the applicable standard for reasonable network management, lest, as a law professor would say, the exception swallow the rule," they wrote.
Other observers of the FCC's net neutrality proceedings have raised some of the same questions.
Without clear definitions, Internet users could see a repeat of the kind of traffic blocking that Comcast did in 2007, when it slowed BitTorrent on its network, said Tim Karr, campaign director for Free Press, a media reform advocacy group and net neutrality supporter. Free Press distributed the law professors' letter, and Wu is the organization's chairman.
"Allowing ISPs this much leeway would effectively eliminate Net Neutrality," Karr wrote on a blog. "And even now, at the beginning of the process, the FCC should be clear as to what it believes the standards should be."
But Jon Peha, the FCC's chief technologist, said that the NPRM intentionally is vague about how to implement net neutrality rules. The FCC is looking for suggestions from the public, he said.
"We know there are hard issues," Peha said Monday at an Information Technology and Innovation Foundation event. "[The NPRM] also has an awful lot of questions. We actually want to know the answers to them."
The FCC has not "prejudged" many of the questions, including network management and congestion, he added. "We recognize we want to build in some flexibility to allow providers to deal with some problems," Peha said.
