What it means: The FCC's net neutrality vote

In addition to expected legal challenges, experts say a profusion of private networks will emerge

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To rebut their point, former FCC Commissioner Michael Copps, now with Common Cause, said that "regulation of rates is not what's being contemplated" by the FCC. He pointed out that the FCC has the potential to spur expansion of high speed, affordable broadband without controlling rates set by Internet providers. Measures the FCC can use to spur expansion include supporting municipal broadband by pre-empting state laws (as the FCC did in a separate 3-2 vote affecting communities in Tennessee and North Carolina) and slowing down industry mergers that can reduce the number of broadband competitors.

AT&T Chairman Randall Stephenson has emerged as one of the most vocal opponents of the new FCC rules. He has appeared many times in recent months on television programs to point out that litigation against the FCC's rules could last up to three years before real clarity emerges on how the regulation will work and what Internet providers will be allowed to do. Discussions are underway as to whether individual companies like AT&T and others would file separate suits or would join together in a massive lawsuit, he said recently.

A large number of Internet providers, including some small municipal broadband authorities, have argued that they already adhere to open Internet rules, making the new FCC rules unnecessary.

"There's not a shred of evidence that this [vote] is necessary," O'Reilly said. Meanwhile, Pai said that both the BitTorrent and Vonage VoIP infringement cases happened years ago and did not constitute much harm, especially in light of the proliferation of Internet services in recent years.

That's the same position that Verizon and other service providers have taken.

"What has been and will remain constant before, during and after the existence of any regulations is Verizon's commitment to an open Internet that provides consumers with competitive broadband choices and Internet access when, where and how they want," said Michael Glover, Verizon senior vice president for public policy.

Questions over FCC's interconnection oversight

One area of the new rules that is ripe for attack will be how the FCC deals with heavy traffic on public networks. The FCC will now prohibit paid prioritization for traffic, as in a case where an Internet provider allows, for a fee, an edge provider or other company to have a fast lane for its fat data video service. While fast lanes are out, the FCC will still allow an Internet provider to conduct "reasonable network management" that recognizes the need for broadband providers to manage the technical and engineering aspects of their networks.

(Of note: All of the FCC's Title II oversight applies to public Internet services and not data services that use private pipes, such as VoIP from a cable service or a dedicated heart-monitoring service. However, the FCC will still keep tabs on these kinds of services through new transparency rules on Internet providers to make sure such services don't undermine Open Internet rules.)

Some Internet providers and other businesses have said that prohibiting paid prioritization while still allowing reasonable network management will create a murky area for the FCC in an era with new technology such as Software Defined Networks (SDNs). For example, what if an Internet provider creates an SDN over a fiber cable normally used for the public Internet and then charges an edge provider a fee for using that fast lane SDN?

As a result of the FCC rules, some analysts predict that Internet providers will be forced to create a profusion of private fast-lane networks of all varieties for their customers that are willing to pay a premium to push out fat content, especially byte-rich video, such as the real-time holographic video now on the technology horizon.

Private networks and reserved private pipes are already a reality, of course, but there are many quasi-public-private networks where a conflict is expected to arise.

For example, Gartner analyst Akshay Sharma posed the question of whether a doctor in surgery waiting for a critical MRI image to be sent over a public network would have the right to network prioritization over other users on the same network accessing games on BitTorrent. Likewise, in January, the FCC chairman was asked in a public forum at the International CES trade show if pornography on the Internet should be treated equally with medical records. Wheeler didn't answer directly, but repeatedly said the "just and reasonable" standard would apply.

There's not likely to be a much of a public discussion of any of these what-if scenarios, and only a lawsuit resulting from a particular dispute between an edge content provider and an Internet provider is likely to have much bearing.

The FCC has already allowed choke points on telephone networks for network management, Sharma noted. For example, when a radio station offers a prize and callers flood the phone lines, there is network management technology in place that still allows 911 calls to go through.

If the FCC does indirectly force creation of more paid, private networks for heavy traffic users, the emergence of SDN and other technologies will create gray areas, at least in a legal sense, if not a technological one.

"The problem you will have is trying to define a public network from what is a private one," said Derek Peterson, chief technology officer for Boingo Wireless, which provides Wi-Fi access to more than 1 million hotspots globally.

Peterson said it is reasonable for the FCC to prohibit paid network prioritization because an Internet provider could hurt one business while helping another on a network link. "An ISP (Internet Service Provider) could sit there and say, 'I don't like that retailer,' which could be bad for it," Peterson said in an interview.

"It's going to be interesting to see how crazy the FCC gets and how technology providers work around rules to deliver the services they need to deliver," he added. "It will be interesting to see how the FCC balances all that and if they are successful at all."

Copyright © 2015 IDG Communications, Inc.

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