The online exchange of information has become essential to the exercise of free speech in today’s world. Google recently attracted a lot of negative publicity for agreeing to censorship demands on its search engine application in China. Many internet users were shocked by this blatant assault on the free flow of information, but recent news in the U.S. raises alarmingly similar concerns: if broadband service providers institute controls as to which sites can be accessed and what information is allowed over their wires at no additional cost, doesn’t that constitute censorship, even if the intent might be just to improve revenues?

"Net neutrality" is the principle that all network users can view any website, access any content, and run any application over the internet. In other words, net neutrality means no blocking or playing favorites with internet traffic. Further clarification is offered by Daniel Berninger, Senior Analyst at Tier 1 Research, in a Gigaom.com post: “Network neutrality refers to uses. . . not the quality of access.” Users already have classes of service relating to quality of access -- speed, reliability, etc. -- dependent on cost. Berninger goes on to say that broadband companies “have in mind creating another type of customer, not a class of service. They want suppliers to pay for the right of transit.”

To do this, providers must track individual users and what they do online, which can be done with today’s technology.

These tactics do produce new types of customers: subscribers whose online activities can be restricted to certain applications or content, and even content providers, who could be charged according to how much of their content is transmitted by the broadband provider. (See “New Kinds of Customers for Broadband Providers,” page 6 sidebar .)

In 2002, the FCC declared cable modem service an interstate “information service,” in the mold of Google or Yahoo!, instead of a regulated “common carrier” telecommunications service. After a failed court challenge to this declaration, the FCC afforded the same leniency to DSL, setting the stage for U.S. internet access that is more private, limited-use toll road than open information superhighway. Both cable and telephone broadband providers then tried blocking certain types of internet traffic that they wanted to charge more for or that threatened their existing revenue: virtual private networks (VPNs) that allow employees to securely connect to their employers; voice-over-Internet Protocol (VoIP) telephone service; and even home local area and wireless networks.

The Federal Communications Commission (FCC), in the person of former Chair Michael Powell, endorsed the concept of net neutrality in a speech on “Preserving Internet Freedom” in February, 2004. Chairman Powell stated that internet users should have the following “Four Freedoms”:

1. Access to their choice of legal content
2. The ability to run applications of their choice
3. Permission to attach any devices they choose to the connection in their homes
4. Receipt of meaningful information regarding their service plans.

The FCC adopted a policy statement, but no rules, based on these principles in 2005. While the FCC’s position along with public pressure eliminated most of the usage blocking mentioned above, many content providers, internet developers, and legislators are urging Congress to write these or similar policies into law as broadband providers are now threatening to charge web content providers for delivering their content to users. Content providers, like users, already pay to be connected to the internet.

Congress has scheduled nine hearings in 2006 to address many possible changes to the Telecommunications Act of 1996 and the first was focused on net neutrality. On February 7 the Senate Committee on Commerce, Science, and Transportation heard testimony from broadband providers, internet content providers, academics and innovators who have been part of the internet’s inception and growth. The committee indicated it favors current FCC policy, but individual Senators differed as to whether the policy needed to be codified or whether neutrality was working fine without legislative action. Senator Ron Wyden (D-OR) has since (on March 2) introduced the Internet Nondiscrimination Act of 2006 to prevent broadband providers from discriminating between sites or offering different classes of service that block access to some content.

At the hearing, spokesmen for broadband provider communications companies presented arguments for not restricting their ability to charge content providers like Google and Yahoo! for allowing users to access their sites. Although the wireline networks are already receiving revenue from their customers, they contend that broadband users should also pay based on which sites they access, in addition to fees for monthly usage of the “pipes.” Some broadband providers argued they were trying to keep the cost down for users or that prioritizing transmission of data packets would be necessary to prevent congestion and loss of data that would otherwise occur.

Testimony from Gary Bachula, Vice President of Internet2, a non-profit partnership of universities, companies, and other organizations including some federal agencies and labs that are developing the next-generation internet, debunked the “congestion” argument with the experience at Internet2. Expanding bandwidth enabled all data to be transmitted, even high-definition television and interactive video conferencing.

Content providers such as Vonage and Google went on record supporting legislation to protect net neutrality. Vonage CEO Jeffrey Citron described his company’s experience of having their VoIP traffic blocked by broadband providers. Lawrence Lessig, Stanford law professor and decade-long student of the relationship between technology and internet policy, testified in favor of legislation to protect net neutrality, specifically legislation to include former FCC Chairman Michael Powell's four internet freedoms and one additional restriction: tiered pricing that discriminates against a particular content provider

Daniel Berninger thinks the opposition to net neutrality stems from its power to stimulate and support innovation, which is a threat to existing revenue streams for current broadband providers. Berninger discounts the “free market” argument against net neutrality, because tolls wouldn’t survive if a free market actually existed. Rather, broadband provider opposition to net neutrality is based on the lack of a free market -- revealed by their opposition to municipal wireless networks and their expenditures on lobbying and public relations rather than on research and development to provide highest-speed access to all users so that the U.S. can compete with other countries.

Rep. Rick Boucher (D-VA), writing in The Hill , February 7, 2006, states his support for legislation establishing net neutrality. Since Rep. Boucher is a member of the House Telecommunications and the Internet Subcommittee and the House Internet Caucus, it is our hope that he will take action to make net neutrality a reality. We encourage our readers to support such an effort.

This article is the third in a series on 2005/2006 telecommunications legislative reform in the March/April 2006 issue of The Right of Way newsletter.

Jean Coughlin is a retired Indianapolis IT worker.