Title II of the Communications Act—the section that regulates telecommunications common carriers is now being considered by the FCC to oversee broadband.  FCC Commissioner Robert M. McDowell during a talk he gave to the Free State Foundation asked:  (see First Do No Harm: A broadband plan for Amercia)

“Exactly what kind of companies might get tangled up into this regulatory Rubik’s Cube?…Any Internet company that offers a voice application?” … “With this newfound authority, why stop at voice apps? Isn’t voice just another type of data app? As the distinction between network operators and application providers continues to blur at an eye-popping rate, how will the government be able to keep up?”

Is Broadband able to be classified as a common carrier service?  The FCC most assuredly believes this is well within its authority – and is exercising these “policies” not just over the agency’s ability to regulate the NET – but if it can be classified as a common carrier service.

Comcast is suing the FCC over its Order sanctioning the company for P2P blocking – so their ability to “regulate” needs to be clearly defined – of course re-defining a government entity is not an easy task… however defining ISPs as common carriers would seem suited to the FCC’s purposes, especially if given Title II’s clear definition of what a common carrier can’t do:

“It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.”

McDowell stated, “At the same time, broadband companies create and maintain software with millions of lines of code inside their systems. They also own app stores that are seamlessly connected to their networks. As technology advances, will the government be able to make the distinctions between applications and networks necessary under a new regulatory regime?…  Will it (the government) be able to do so in Internet Time?”

One thing is clear -  If we were able to agree on some basic tenets providers could utilize to ensure all accounts are serviceable based upon not only “bandwidth” but also “throughput”  most of these arguments would simply be a mute point.

This past October (2009) The FCC laid out its draft for network neutrality rules which appears to allow to the greater extent a “free and open Internet.”  The principles already existing from 2005:

• Consumers are entitled to access the lawful Internet content of their choice
• Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement
• Consumers are entitled to connect their choice of legal devices that do not harm the network
• Consumers are entitled to competition among network providers, application and service providers, and content providers.

Those principles along with two new additional principles are now going to be made “binding:

• A provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner
• A provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking

In this ever changing world of the INTERNET -  I do not think it is reasonable to agree ISP’s are able to perform Network management based on ambiguity:

• To manage congestion on networks
• To address harmful traffic (viruses, spam)
• To block unlawful content (child porn)
• To block unlawful transfers of content (copyright infringement)
• For “other reasonable network management practices”

The ambiguity of that last item is alarming to both camps in the war for “net-neutrality.”  The FCC is going to at some point – have to define the other reasonable network practices” for this to have any real meaning after all.  The question remains:  Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality has it?