Lest my posting of a certain ninja‘s take on the subject lead anybody astray, I’m not a big proponent of “net neutrality” as the phrase is currently understood. I don’t agree with Mr. Ninja’s stance, seeing it as humorous hyperbole. The problem is that most of the discussion about freeing the Internet from the evil telcos (or freeing the Internet from the threat of innovation-strangling regulation) is non-humorous hyperbole. Richard Bennett summarized the ongoing “neutrality” debate rather succinctly in a recent post.

If your ISP wants to keep you from watching videos of the Hot Dog on a Stick girl, they’ll anger you and you’ll vote with your feet by leaving. You’ll then proceed to bad-talk them to anybody you know when the subject arises, and attribute every problem folks have with their connectivity to that ISP’s neo-facist policies and campaign of freedom-curtailing. It isn’t in the interest of your ISP to cut you off from content.

That said, the telcos’ Hands Off the Internet campaign is certainly not to be trusted. What’s the big tip-off? They are even less eager than their natural arch-rivals the Save the Internet campaign to provide the actual text of the legislation they claim to be informing the public about. The most recent bill considered by congress was the “Internet Freedom Preservation Act of 2006,” but the actual substance of the bill is rarely referenced, as folks opt instead to fly off on irresonsible tangents, hacking away at straw men of their own fabrication.

A non-expert full-text analysis follows:

A BILL

To amend the Communications Act of 1934 to ensure net neutrality.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Internet Freedom Preservation Act’.

SEC. 2. INTERNET NEUTRALITY.

Title I of the Communications Act of 1934 (47 U.S.C. 151 et seq.) is amended by adding at the end the following:

Standard start of a bill, nothing to write home about. The act may be cited by a focus-group-tested name including two of the all-time favorite terms abused by the Senate of the United States of America: Freedom and Preservation. An analysis of the Communications Act of 1934 would be a herculean task beyond the scope of this humble blog entry.

`SEC. 12. INTERNET NEUTRALITY.

`(a) Duty of Broadband Service Providers- With respect to any broadband service offered to the public, each broadband service provider shall–

`(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet;

Right here I start wondering about the ability of ISPs to provide blocklist services such as the XBL or RBL to their customers. Hopefully we’ll be seeing a list of exceptions later.

`(2) not prevent or obstruct a user from attaching or using any device to the network of such broadband service provider, only if such device does not physically damage or substantially degrade the use of such network by other subscribers;

Oh good, you can plug your modem or bridge in. Additionally, the ISP is not to try to prevent a user from supplying his own router or whatnot.

`(3) provide and make available to each user information about such user’s access to the Internet, and the speed, nature, and limitations of such user’s broadband service;

Sounds reasonable. I wonder if the strange practice of cable advertizements claiming “speeds up to 4x that of DSL” with microscopic “where DSL is 1.5mbps” disclaimers will be affected by this. I’d love to see a Comcastic add that actually comes out and says “Six Megabits Per Second” in plain techno-jargon.

`(4) enable any content, application, or service made available via the Internet to be offered, provided, or posted on a basis that–

Here it comes…

`(A) is reasonable and nondiscriminatory, including with respect to quality of service, access, speed, and bandwidth;

`(B) is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider; and

`(C) does not impose a charge on the basis of the type of content, applications, or services made available via the Internet into the network of such broadband service provider;

This is, I presume, intended to mean that the ISP shall allow such content and services to traverse that ISP’s network, but that’s not what it says. Instead it says that such content and services must be “enabled.” I hope there’s a very technical and specific legal meaning to “enable” in this context, and I find it lacking so far in the bill.

`(5) only prioritize content, applications, or services accessed by a user that is made available via the Internet within the network of such broadband service provider based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization; and

This seems to mean that an ISP can prioritize VOIP or other jitter-sensitive traffic, provided that they do not make such decisions based on extra compensation.

`(6) not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section.

Ah, so the ISP isn’t allowed to do things contrary to this bill. Cute.

`(b) Certain Management and Business-Related Practices- Nothing in this section shall be construed to prohibit a broadband service provider from engaging in any activity, provided that such activity is not inconsistent with the requirements of subsection (a), including–

Hey neat, something the ISP can do!

`(1) protecting the security of a user’s computer on the network of such broadband service provider, or managing such network in a manner that does not distinguish based on the source or ownership of content, application, or service;

ISP-side firewall OK, known-bad-host filtering not-so-much. Hmm.

`(2) offering directly to each user broadband service that does not distinguish based on the source or ownership of content, application, or service, at different prices based on defined levels of bandwidth or the actual quantity of data flow over a user’s connection;

Different speed tiers to customers OK. This would be the “forcing the consumer to pay for Google’s bandwidth” end of things.

`(3) offering consumer protection services (including parental controls for indecency or unwanted content, software for the prevention of unsolicited commercial electronic messages, or other similar capabilities), if each user is provided clear and accurate advance notice of the ability of such user to refuse or disable individually provided consumer protection capabilities;

This would be the token “protect the children” clause. I rather like the idea of forcing providers to let their customers turn such protections off, though.

`(4) handling breaches of the terms of service offered by such broadband service provider by a subscriber, provided that such terms of service are not inconsistent with the requirements of subsection (a); or

Hey, a nod towards acceptable use policies. Outstanding.

`(5) where otherwise required by law, to prevent any violation of Federal or State law.

A nice little elastic clause. I could see this largely neutering the bill in regards to de-prioritizing services like Bit Torrent unless it is going to or from a “known-good” source that isn’t promoting or actively participating in copyright violations.

`(c) Exception- Nothing in this section shall apply to any service regulated under title VI, regardless of the physical transmission facilities used to provide or transmit such service.

I normally only see things about Title VI in regards to the Civil Rights act, but in this context it is the part of the Communications act from 1984 that covers cable providers. The broader Communicatitons Act is beyond the scope of this entry, so I’ll leave this bit as a big question-mark.

`(d) Stand-Alone Broadband Service- A broadband service provider shall not require a subscriber, as a condition on the purchase of any broadband service offered by such broadband service provider, to purchase any cable service, telecommunications service, or IP-enabled voice service.

Yay, “naked DSL” at last. Of course, the FCC already requires this, but this would make its availability a statutory mandate.

`(e) Implementation- Not later than 180 days after the date of enactment of the Internet Freedom Preservation Act, the Commission shall prescribe rules to implement this section that–

Ouch. 180 days? For the FCC to prescribe implementation? They couldn’t order a sandwich in that kind of time-frame.

`(1) permit any aggrieved person to file a complaint with the Commission concerning any violation of this section; and

`(2) establish enforcement and expedited adjudicatory review procedures consistent with the objectives of this section, including the resolution of any complaint described in paragraph (1) not later than 90 days after such complaint was filed, except for good cause shown.

Somebody would have to enforce this, which means some method aside from lawsuits would be good. That “180 days” requirement strikes me as asking for a lot of flexibility from a monolithic bureaucracy.

`(f) Enforcement-

`(1) IN GENERAL- The Commission shall enforce compliance with this section under title V, except that–

`(A) no forfeiture liability shall be determined under section 503(b) against any person unless such person receives the notice required by section 503(b)(3) or section 503(b)(4); and

`(B) the provisions of section 503(b)(5) shall not apply.

This would look like one of those “the devil is in the details” bits.

`(2) SPECIAL ORDERS- In addition to any other remedy provided under this Act, the Commission may issue any appropriate order, including an order directing a broadband service provider–

`(A) to pay damages to a complaining party for a violation of this section or the regulations hereunder; or

`(B) to enforce the provisions of this section.

If the regulated business messes up, the FCC is to contrive some mechanism to make them pay for it. Seems reasonable.

`(g) Definitions- In this section, the following definitions shall apply:

`(1) AFFILIATED- The term `affiliated’ includes–

`(A) a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person; or

`(B) a person that has a contract or other arrangement with a content, applications, or service provider relating to access to or distribution of such content, applications, or service.

Again these are reasonable. Note that the term “person” here includes artificial people (e.g. corporations).

`(2) BROADBAND SERVICE- The term `broadband service’ means a 2-way transmission that–

`(A) connects to the Internet regardless of the physical transmission facilities used; and

`(B) transmits information at an average rate of at least 200 kilobits per second in at least 1 direction.

I love that arbitrary 200 kilobits per second bit. It excludes technologies like ISDN while keeping hideously-latent stuff like satellite/dialup hybrids in the “broadband” category. That some DSL circuits operate at 192kbps was likely unknown by the people that wrote this.

`(3) BROADBAND SERVICE PROVIDER- The term `broadband service provider’ means a person or entity that controls, operates, or resells and controls any facility used to provide broadband service to the public, whether provided for a fee or for free.

Well that answers the question of whether such a bill affects more modest operations like Sonic.net. It also means that if you have a WiFi access point that your neighbor surfs through, this bill would apply to you.

`(4) IP-ENABLED VOICE SERVICE- The term `IP-enabled voice service’ means the provision of real-time 2-way voice communications offered to the public, or such classes of users as to be effectively available to the public, transmitted through customer premises equipment using TCP/IP protocol, or a successor protocol, for a fee (whether part of a bundle of services or separately) with interconnection capability such that service can originate traffic to, and terminate traffic from, the public switched telephone network

Be afraid when legislators try to include fairly-new technology in a bill. Be very afraid.

`(5) USER- The term `user’ means any residential or business subscriber who, by way of a broadband service, takes and utilizes Internet services, whether provided for a fee, in exchange for an explicit benefit, or for free.’.

Looks like a reasonable definition of “user” here. I think the authors of this bill have played this game before.

SEC. 3. REPORT ON DELIVERY OF CONTENT, APPLICATIONS, AND SERVICES.

Not later than 270 days after the date of enactment of this Act, and annually thereafter, the Federal Communications Commission shall transmit a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives on the–

That would be 90 days after formulating the above regulatory systems. Again, not actually a reasonable timeframe. With 180 days to develop systems and 90 days to generate a report on them, we’d be highly likely to end up with poorly-conceived systems and a poorly-executed report.

(1) ability of providers of content, applications, or services to transmit and send such information into and over broadband networks;

(2) ability of competing providers of transmission capability to transmit and send such information into and over broadband networks;

(3) price, terms, and conditions for transmitting and sending such information into and over broadband networks;

Price, terms, and conditions for transmitting and sending such information? For all broadband providers? Tall order for 90 days.

(4) number of entities that transmit and send information into and over broadband networks; and

Wow. That’s going to take some tricky network engineering. We have been thus far unsuccessful in coming up with raw numbers for how many DSL an Cable circuits there are in the United States. Add in various other means of connecting faster than 200kbps, and you’re talking about an accounting, statistics, and/or demographic nightmare.

(5) state of competition among those entities that transmit and send information into and over broadband networks.

Considering that the FCC likely won’t be able to figure out who the broadband providers are, they won’t be able to competently speak to the state of competition betwixt them.

My Take

Overall, I think that this is about as good a bill as one could expect from the federal legislature. Unfortunately, I have serious doubts that the federal legislature is capable of dealing with these topics. The bill as written would prevent a number of proven spam-reduction measures, and shoulder a great many ISPs with regulatory obligations hitherto unseen. Conventional wisdom holds that less regulations on small businesses (particularly small businesses that aren’t in a position to cause harm to people) is undue and restrictive, and prohibitive of innovation.

The Senate would be better-advised to seek some means of breaking up the virtual-duopoly that exists in most areas in regards to broadband access than to tread into legislatively-uncharted waters like this. I’m glad it didn’t pass, though it wasn’t nearly as bad as its opponents claimed.