I was, and remain, cautiously optimistic about Genachowski's appointment, and President Obama's professed support of Net Neutrality. But as always, the Devil is in the details. Sadly, Genachowski's speech did little to share those details with us.
This seems to be Julian Sanchez's observation as well, though he's far more skeptical than I:
The digest version is that the open Internet is awesome (true!) and so the FCC is going to impose a “nondiscrimination” obligation on telecom providers—though Genachowski makes sure to stress this won’t be an obstacle to letting the copyright cops sniff through your packets for potentially “unauthorized” music, or otherwise interfere with “reasonable” network management practices.
If the FCC's stance amounts to protecting end-to-end best effort delivery of packets, then I can wholeheartedly support it. This is part of the underlying structure of how the Internet and TCP/IP was designed, and to quote Larry Lessig, "Code is Law". This is a more thorough description of the End-to-End principle I laid out on this blog some time ago:
When you request a webpage (be it from Google, or from my tiny website), the packets being delivered to your desktop are switched along all the intermediate pathways (by AT&T, Comcast, or whomever) *without being molested*. Every packet on the network, from end to end, queues up and shoots down the line at it's fastest possible speed. Comcast wants the right to hold up your packets in transit to make way for traffic they deem more important. This is a violation of Net Neutrality. When intermediate carriers and providers can decide what types of applications, or packets from certain sources, are given priority at the switch level, they can decide which sites perform better on your desktop. Not based on the bandwidth that you pay for...Not based on the bandwidth the website pays for... But on which content is in the *best interest of the ISP*.
I can understand the FCC's role in protecting against this, and we've already seen ISP's violate this principle in the name of "network management practices". This is a smokescreen. If an ISP can not deliver as advertised the connection speeds which it is selling, regardless of the nature or volume of the traffic generated by its own customers, then it is falsely advertising as service that it doesn't have the ability to sell. It's that simple.
Hopefully, this is the kind of violation that the FCC will focus on, but Genachowski's speech is vague enough that it doesn't fill me with much enthusiasm.
One part of the speech holds profound implications for cellphone service providers and the mobile internet:
New mobile and satellite broadband networks are getting faster every day, and extraordinary devices like smartphones and wireless data cards are making it easier to stay connected while on the go. And I note the beginnings of a trend towards openness among several participants in the mobile marketplace.
Even though each form of Internet access has unique technical characteristics, they are all are different roads to the same place. It is essential that the Internet itself remain open, however users reach it. The principles I’ve been speaking about apply to the Internet however accessed, and I will ask my fellow Commissioners to join me in confirming this.
This statement, combined with the FCC's recent probe into who rejected the Google Voice app on the iPhone, concerns me. It seems to state clearly that AT&T wouldn't be able to filter out Google Voice data from the network, but does it mean that Apple can't choose which apps run on the iPhone, something technically completely outside of network management practices? Time will tell, but if I was an iPhone lover (I'm not) I'd be worried that the FCC is messing with the curated experience that I have chosen Apple to provide for me.
Understandably, AT&T is less than thrilled with this, particularly after they dropped so much cash on an FCC auction for a portion of the airwaves specifically set aside to be run as AT&T sees fit (unlike the portion that Verizon bought, much credit due to Google, that demands end-to-end openness). More details on that story here.
One thing is certain, the FCC is making waves right now. I don't envy the service providers who must work with them, as building business plans on shifting sand is always a difficult thing. Hopefully, the FCC will develop concrete guidelines that can inform all the actors soon. The FCC's heart is is in the right place, and Genachowski is certainly smart enough about the technology not to make any boneheaded moves, but as always, it's the unintended consequences to be wary of.