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Net neutrality ruling was vague and incomplete

By Edward Wasserman

McClatchy Newspapers

Published: Friday, Jan. 7 2011 12:00 a.m. MST

The digital revolution has been shaped by blunders as much as by breakthroughs, and the course of its brief history is littered with the bleached skulls of visionary efforts undone by bad timing, bad judgment or the simple human inability to see around corners.

So to the tangle of questions known as "net neutrality." It may not be, as now-Sen. Al Franken says, "the most important free-speech issue of our time," but the issues are indeed big, defining ones. They involve power, specifically how much power in shaping the online world will be allowed to the companies we pay to access it.

Late last month, the Federal Communications Commission, the government's top industry regulator, issued a long-awaited order on "Preserving the Free and Open Internet." It should have been a decisive inflection point in the Internet's history. It may instead wind up consigning one of the online world's signature principles to a roadside boneyard.

Some background. Net neutrality means that the companies that link you to the Internet may not favor some services over others. They can't offer faster connections to one application just because they own it or because they've shaken down its owners for extra money. Consider your phone connection: It's just as fast and just as clear regardless of whom you're talking to; similarly, your Internet service should be divinely indifferent to who's speaking and what they're saying.

Net neutrality means that Comcast, the country's biggest cable company, can't decide that to push you into using a routing service of its own, instead of MapQuest or Google Maps, it'll mire them in pokey download speeds. Or the phone company that rents you Internet access via a DSL can't link you to Skype, the global Internet phone grid, on a scratchy and unreliable line.

Net neutrality has been at the core of the Internet's stunning success. Digital pioneers, from Twitter to MySpace, knew the service providers they needed wouldn't put the squeeze on them, or scrutinize their offerings, or operate as gatekeepers, deciding who gets what quality of service and at what price.

But the pressure on net neutrality has been growing, hence the push to formalize the rules. Some telecommunications companies say neutrality infringes on their rights to charge what their services are worth (and recover their enormous outlays on infrastructure), and codifying neutrality rules would cripple further development. Some regulators argue that there's no reason for formal rules, since nobody has actually done what they would prevent, and the government has neither the authority nor the right to meddle in such a spectacularly successful industry.

Still, just before Christmas the FCC, after years of hearings and chin-stroking, approved 3-2 a net-neutrality order. Its three cornerstones are that broadband service providers — the companies you pay for Internet access — must disclose their policies, must offer access to all lawful sites and may not exercise "unreasonable discrimination" in pricing or service offerings.

Fair enough. But the 134-page order managed to settle virtually none of the most pressing matters it needed to resolve.

First, it left unclear whether companies can charge more for "prioritized access." Can they demand a website pay extra so its customers can ride the fast lane? Prohibiting such favoritism is at the beating heart of net neutrality, yet the order says only that priority payment would "as a general matter" be "unlikely" to slip past the ban on unreasonable price discrimination. Meaning?

Second, the order leaves open whether channel masters can favor their own "specialized services" over similar applications available on the open Internet. But "specialized services" — Internet-based telephony, for one — are precisely where the action is. What else does net neutrality mean if not banning discrimination that disadvantages them?

Third and most disturbingly, the order generally exempts the fastest growing digital sector, mobile services (an exemption, by the way, that industry heavyweights Google and Verizon urged in an unusual joint policy utterance in August). It does forbid wireless providers to block applications that compete directly with their own. Otherwise, though, it says that because the mobile Internet has tight capacity constraints, providers need discretion over how to "manage" their networks. So hands off.

That is especially absurd. If anything, greater scarcity demands even stricter regulatory oversight to ensure non-discrimination.

Open access and wide opportunity to the vibrant universe of content creators have defined the Internet's continuing success. But huge power naturally flows to those who control not content, but channels. Restraining that power is essential if the promise of the Internet isn't to be yet another weathered skull.

Edward Wasserman is Knight professor of journalism ethics at Washington and Lee University. He wrote this column for The Miami Herald.

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