Wednesday, December 22, 2010

FCC Taps Reasonable Man to be Net Neutrality Czar

In a 3 to 2 decision along party lines, the FCC voted to adopt an Order that purportedly codifies and makes enforceable the open Internet principles that have been kicking around since 2005, aka “net neutrality.”

The actual Order isn’t public yet, but the FCC news release as well as the public statements of the Commissioners yesterday indicate that it (1) mandates Internet Service Providers to be transparent about their network management practices, (2) prevents wireless ISP’s from blocking websites, and wireline ISP’s from blocking content, applications, services and devices, subject to reasonable network management practices, and (3) prohibits wireline ISP’s from “unreasonably discriminating” in the transmittal of traffic.

For clarification, I guess, the Order makes it clear that “reasonable network management shall not constitute unreasonable discrimination.”

This all sounds pretty reasonable, right? Most people agree that the public’s interest in the Internet -- the infrastructure of today’s democracy and platform for free speech and innovation -- deserves protection and oversight. Most also agree that the government can’t and shouldn’t build out networks to serve America’s 308 million people. Businesses should be encouraged by market forces to invest in networks, and need freedom to fairly exercise judgment in the management of their enterprise.

The often used metaphor likens the Internet to an “information highway” in need of basic rules of the road. Excessive tolls, detours and bumps slow down the information traffic and the modern economy. The Internet is the 21st century Interstate on which goods and services hum along to good people everywhere at the same clip. On the asphalt highway you get a ticket for going too fast or driving recklessly. On the Internet it’s been a free-for-all, until now.

The long-awaited cop on the Internet beat is someone you might recognize. The Reasonable Man, that prudent fictional character who mows his own lawn in shirt sleeves, drives an American car, takes the flag in when it rains, and whose conduct sets the standard in tort law will now work a second job over at the FCC.

What constitutes “reasonable network management” when technology is evolving at the speed of light and millions of dollars are at stake will likely be determined by 3 to 2 decisions at the FCC along party lines until some court or the Congress gets involved, and even then “reasonableness” will depend on one’s view of the world. If you believe government should protect the public’s interest and ensure the equal opportunity to succeed, reasonable network management tactics will be scrutinized very carefully and free speech and democracy will be accorded substantial weight on the scales of justice.

If, on the other hand, you believe corporations’ First Amendment rights, and the “right” of big business to accumulate unfettered power and wealth are more deserving of protection than ordinary people and the public good, then any interference with the machinations of big-business is, well, unreasonable.

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