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Net Neutrality: Tuesday's Vote May Not Be the End

A vote this week by the U.S. Federal Communications Commission on network neutrality rules for broadband providers will be an important step in a seven-plus-year debate over network discrimination and management, but it won't be the end of the issues.

The FCC is scheduled to vote on net neutrality, or open Internet, rules during its Tuesday meeting, but if the proposal by FCC Chairman Julius Genachowski passes, Republicans in Congress have promised that they will try to repeal the decision. With a divided Congress, attempts to repeal net neutrality rules may not succeed, but there's also a chance of a lawsuit on an FCC decision this big.

Where would a lawsuit come from? Large broadband providers AT&T and Verizon Communications have been largely silent about Genachowski's proposal, saying they're waiting to see the final language. And Comcast, which filed a lawsuit when the FCC attempted to enforce informal net neutrality rules late last year, has voiced initial support for Genachowski's proposal.

AT&T was previously a leading voice against net neutrality rules, however. The Independent Telephone and Telecommunications Alliance, representing six midsize broadband providers including Qwest Communications International and FairPoint Communications, has also voiced opposition to the proposed rules. There is "no factual basis to regulate broadband, only unfounded fears," the group said in a Dec. 17 letter to congressional leaders.

To preview the FCC's vote, here's a net neutrality primer:

What's in the proposal?

Genachowski's plan is reportedly based on a net neutrality compromise brokered by outgoing House Energy and Commerce Committee Chairman Henry Waxman, a California Democrat. Waxman met behind closed doors with broadband providers, Web-based companies and net neutrality advocates earlier this year, but the compromise fell apart in Congress after committee Republicans declined to endorse it.

Under Genachowski's proposal, the FCC would prohibit broadband providers from blocking customer access to legal Web content. The FCC would also require providers to disclose their network management practices to customers.

The proposal would bar wireline-based broadband providers from "unreasonable discrimination" against Web traffic, but it would not impose that same rule on mobile broadband providers. The FCC would watch mobile broadband providers closely and act if it sees evidence of anticonsumer or anticompetitive conduct, Genachowski said in a speech.

The proposal would not reclassify broadband as regulated, common-carrier service under Title II of the Telecommunications Act, as Genachowski proposed earlier this year. Broadband would stay classified as a lightly regulated information service under Title I.

More details of the proposal will come out during the FCC meeting, which starts at 10:30 a.m. EST Tuesday.

What to watch for at the meeting

The commission's two Republicans, Robert McDowell and Meredith Attwell Baker, have voiced strong opposition to the proposal. But there's not guaranteed support from the commission's three Democrats, either. Commissioner Michael Copps has expressed doubt about whether the FCC has the authority to enact formal net neutrality rules without reclassifying broadband as a common-carrier service.

Copps, lobbied in recent days by net neutrality advocates who say the proposal isn't strong enough, is likely the swing vote.

Several groups have been lobbying for tougher rules, and it will be interesting to see how closely the proposal presented at the meeting mirrors Genachowski's plan unveiled in early December. With the two Republicans already saying they will vote against the proposal, Genachowski may need to strengthen the proposal to get Copps' support.

Who's opposed to the proposal?

In short, a lot of groups have criticized the plan, with opposition coming from both sides of the debate. Several congressional Republicans and antiregulation think tanks have ripped the plan, saying that the FCC should let Congress decide the controversial issue. Congress hasn't been in a rush to do anything, however -- lawmakers have introduced several net neutrality bills in recent years, with none passed into law.

Opponents of net neutrality rules have long argued that there's been little evidence of broadband providers selectively blocking Web traffic. Some have suggested that new rules would hurt investment in broadband, although there's wide disagreement on that point.

On the other side, dozens of groups that have called for strong net neutrality rules have also panned Genachowski's proposal, saying it's too weak to protect broadband customers. Groups including Public Knowledge, Free Press and Media Access Project, long-time supporters of new net neutrality rules, have questioned why Genachowski would impose fewer rules on mobile broadband carriers than on wire-based carriers.

Those groups have also suggested the proposal may not prohibit broadband providers from getting paid to prioritize some Web traffic, and they have pointed to supposed loopholes for broadband providers, including an exemption from the rules for managed or specialized services.

Other groups, including the American Library Association, have questioned whether the plan would provide the same protections for schools and libraries as it would for residential broadband customers.

So who supports the plan?

Several groups have expressed support, including previously mentioned Comcast. Also expressing support in recent days were the Minority Media and Telecom Council, the Communications Workers of America, and the National Association for the Advancement of Colored People (NAACP).

The American Cable Association, the Consumer Electronics Association, and Sprint Nextel are also among the groups that have praised the proposal.

The history of the net neutrality debate

Some Web-based companies, consumer groups and digital rights advocates have been calling for rules prohibiting broadband providers from selectively blocking or slowing Web traffic for the better part of the decade. Tim Wu, a Columbia University law professor, coined the term, "net neutrality," in a June 2003 paper.

The idea gained little traction until 2005, when the U.S. Supreme Court upheld an FCC decision that exempted cable-based broadband providers from sharing their networks with competitors. Later in 2005, the FCC voted to exempt telecom-based providers from sharing their networks, although commissioners approved a set of informal net neutrality principles at the same time.

Then, in late 2007, media reports showed Comcast throttling its customers' access the BitTorrent peer-to-peer client and other applications. Comcast at first denied it was slowing P-to-P and other traffic, but an FCC study found that the throttling was widespread. The FCC, in August 2008, ordered Comcast to stop slowing P-to-P traffic and to produce a new network management plan.

Comcast filed a lawsuit, and in April, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC did have the authority to enforce the net neutrality principles.

In May, Genachowski proposed to reclassify broadband as a regulated service, with the FCC declining to enforce many Title II rules on broadband carriers, but that proposal met strong resistance from broadband providers, congressional Republicans, and several other groups. Verizon and Google presented their own net neutrality proposal in August, but many net neutrality supporters complained that their plan was weak and would limit FCC authority over network discrimination.

After attempts at the FCC and in Congress this year to broker a compromise, Genachowski made his new proposal -- abandoning broadband reclassification -- earlier this month.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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