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December 27, 2010 2:38 PM

FCC NetNeut Order Full of Sound and Fury Signifying Nothing

After years of debate, the FCC has voted on a net neutrality order.

The intent of this order is to bring clarity and certainty to this area so as to encourage greater investment in broadband capacity and utilization.

Unfortunately the FCC has failed egregiously in bringing clarity to these complex issues.

How can I say that? Simply.

While this order states that providers can't discriminate against content/services/apps and especially can't do paid prioritization, it also suggests that providers must also be allowed to manage their networks and experiment with new business models.

Well here's the problem: most all of the new business models broadband providers are considering involve some form of paid prioritization.

For starters, one could argue that facilities-based services are already benefitting from paid prioritization. As an example, a broadband provider who's offering IPTV is doing so using quality of service that Internet video doesn't get. So does this mean they shouldn't be allowed to do that? Should they be forced to open up this level of quality of service to all Internet video providers? No one's necessarily suggesting they should, but this is just one implication of what a ban on paid prioritization could mean.

Then there's the Level 3 vs. Comcast debacle. The gist of this issue, as I understand it, is that Comcast is running their Internet capacity at full hilt, and pressuring content delivery networks that handle sites like Netflix to pay up to peer directly with Comcast's network to improve the quality of their video delivery. Should this be legal or illegal? And either way, how should these business relationships be regulated to make sure that broadband providers don't flex their muscle too much to squeeze money from content/app providers to the detriment of broadband users?

These are two of the biggest issues related to net neutrality, and yet there seems to be no answers in this order for how to address them. But these are really just the start.

For example, say a broadband provider wants to start selling a videoconferencing service with some kind of QoS on it. Let's assume they don't build their own but rather want to partner with a best-of-breed provider. Does this violate net neutrality? They're providing paid prioritization, but they're also pursuing what seems like a legitimate new business model that could enable a new class of apps and services. If they are able to do this, does that mean they have to offer this access on the same terms to everyone?

Now what happens if that broadband provider developed this videoconferencing service in house? Some might argue providers shouldn't have the power to pick winners and losers in terms of Internet apps/services, but are we really saying that private companies shouldn't be able to determine how they monetize the networks they built and paid for with their own apps and services?

The two extremes of net neutrality are that government should do nothing or that government should embrace the paradigm of structural separation, where network owners/operators are only in the business of moving bits and not delivering services.

In this order the FCC has attempted to find a middle ground, but in so doing they've exposed the complexities of these issues and the shortcomings of their approach for trying to address them.

While this order has been decried as both a government takeover of the Internet as well as the end of the open Internet as we know it, in reality the only clarity this order brings is that we now know beyond a reasonable doubt that the FCC is unwilling and/or unable to even consider the possibility of achieving real net neutrality.

Another thing that's clear is that even the modest half steps proposed in this order are unlikely to ever be seriously operationalized as it's much more likely they'll be challenged by broadband providers in court and delayed or struck down entirely.

So while this order may do little to nothing to bring clarity to how to deal with specific potential violations of net neutrality, it does bring clarity to broadband providers that they have nothing to worry about when it comes to the FCC pushing to actually shift the paradigm and trajectory of Internet and broadband evolution.

In the end, while there's been endless sound and fury surrounding the release of this order, the reality is that it signifies nothing. This isn't a government takeover of the Internet, and it isn't the end of the Internet as we know it (at least not yet). Instead it's just another step down a long road of ineptitude as the FCC continues to fail to provide America with the regulatory leadership we need to remain leaders in the global digital economy.

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