Monday, September 21, 2009

First Reaction - The Nondiscrimination Rule

To some extent, perhaps because these ideas have been circulating for so long, the speech has the feel that not much is new. (Although, of course, the idea of the FCC's actively regulating the Internet is something new. We can debate later where this constitutes "active regulation.")

But let me start by sussing out the articulated nondiscrimination rule. One of the difficult questions in the network neutrality debate is setting out the nondiscrimination rule. The speech says two things: “broadband providers cannot discriminate against particular Internet content or applications”; and “Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider.” (p. 5) The first nondiscrimination rule goes beyond some weaker versions of nondiscrimination, such as a nondiscrimination rule that just forbids “source” discrimination but allows the carrier the ability to manage its network based on the traffic’s application. I and others (Christopher among them) have said that some reasonable network management might be application-based, taking into account that some applications need to be in real time (VoIP, video conferencing, gaming) and some can tolerate greater degrees of delay (web page serving, email, ftp). A source-based nondiscrimination rule would simply say that the carrier cannot pick and choose the sources of the application being managed (delayed, degraded, whatever you prefer). So, if the carrier manages “video” traffic or “peer-to-peer” traffic, then it must manage all such traffic in exactly the same say no matter where it comes from. This sort of nondiscrimination rule would handle the problem (which the speech says that it sees, p. 3) of the carrier choosing its own or affiliated content over unaffiliated content. It would not, however, (and this is the argument for net neutrality) allow entirely new applications to take advantage of the quality of service being provided to an old application.

But this also limits (to the mirror degree) the level of network management allowed to the carrier.

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