[NPD: Was the FCC's repeal of the Communications Act of 1934 before or after the Supreme Court's "Brand X" Decision in June 2005?]

The Supreme Court's decision led the way, two years ago. It upheld the classification of cable modem service as an information service, and not subject to non-discrimination regulation and consumer protections. Then the [Federal Communications] Commission went ahead and applied it to DSL.

[NPD: If a network discriminates traffic based on content, will they lose common carrier status?]

Well, they lost it already - that was the whole point of what the Commission did. Basically they took DSL and cable modem service out from under Title II common carrier regulation, and exempted them from line sharing and other things.

[NPD: Since they do not have common carrier status, are they liable for things they transmit over the network, for example, copyright infringement, virus, contraband, etc.?]

They're still under the FCC's Title I generic regulation, and there are parts of the Digital Millennium Copyright Act [PDF] which exempt network providers from material on their site over which they have no editorial control, but it did throw some other things into quandary. For example, what do you do about CALEA and wiretapping? If you say that something is an "information service," does the FCC have jurisdiction over it? The FCC just sort of said "yes we do" and glossed over all the issues regarding not being under Title II regulation.

There's the famous case of the Madison River telephone company in North Carolina from Spring of 2005, which is the case where they were blocking Vonage, and the FCC told them to stop. Well, the reason they could tell them to stop at that point was because the service was still regulated under Title II, and the FCC still had jurisdiction over them. Many attorneys will tell you now it's an open question whether, if that happened today, the same result would occur, because of the murky legal status of the service offering.

[NPD: Can you explain a bit about the benefit of the "dumb network?"]

The network itself is not necessarily totally dumb. The question is, where do you put the intelligence, and is the intelligence in the network or the edges? (Or the enterprise, for that matter?) What we're talking about in terms of a consumer experience is not necessarily dumb or intelligent; it's a matter of prioritizing, which I don't consider to be part of the dumb network. It's just a matter of who gets to pick what services run, how. That should be the consumer, not the network.

[NPD: There's an argument that the consumer gets a dollar vote with their choice of network providers. Do consumers have that choice? Is this a situation if, where if one service provider became non-neutral, and the other service provider stayed neutral, consumers can select which one they prefer?]

First, it's not the case that all consumers have a lot of choices. In some parts of the country, they don't have anything beyond dialup. In other parts of the country, they may only have one broadband provider. It's not necessarily a given that consumers have that much choice, and even in the best of areas, where they have choice, it's basically a duopoly between the cable company and the phone company. I don't believe has the making of a robust, vibrant, competitive market. Plus you add in the "hassle factor" of changing service providers and I don't believe it's that easy to go back and forth.

[NPD: Regarding the idea of caching service - something like Akamai - where, for example, CNN.com has multiple mirrors over the Web. Some argue that if certain versions of Net Neutrality were coded into law, it would prevent this situation, because this is the classic case of a service provider paying extra money, which other companies can't afford, in order to get better service to the end-user.]

No, it's not an issue at all. If you go to FCC.gov, and you look at the merger agreement between AT&T and Bell South [PDF], it has nothing to do with Akamai, it has nothing to do with external services. It's very simple. The network service provider cannot discriminate in how content is treated.

If CNN wants to go pay Akamai to cache all over the Web? Fine, go right ahead. The question is, if AT&T determines through its technological ability, that CNN traffic should have preference over Fox News traffic, that's network discrimination.

[NPD: What about protocols? Would it be an issue if, for example, a network that wants to support VoIP, Streaming Video - not discriminating against specific VoIP providers - allocates a certain level of Quality of Service for TCP traffic, and another Quality of Service level for UDP traffic?]

If a Vonage VoIP service was treated the same as Verizon's own VoIP service or AT&T's own VoIP service, then we wouldn't have an issue with it. It's within those types of protocols if there's discrimination, then we have an issue with that.

[NPD: Would customers who are connected to neutral ISPs have noticeably increased response time if the traffic passes, or is routed around, a non-neutral ISP?]

I don't know. It could, but the question is: How much traffic is there and how long it has to travel. Generally when you talk about the throughput on intermediate hops along the way, it doesn't stay very long. Not time enough to get a cup of coffee there. So, if it's just passing through without discernable effect on the end user, it wouldn't be an issue. If you look at AT&T's agreement, Net Neutrality [is concerned with the link] from the customer's presence to the Internet exchange point. That's where the network providers have the most influence over the disposition of the traffic.

[NPD: How, in your opinion, will the incoming Congress affect Net Neutrality policy in the next two years?]

Obviously with the AT&T/Bell South agreement, that's a positive step. Speaker Pelosi had her innovation agenda, and Mr. Dingle and Mr. Markey will be in charge of the commerce committees on the House side, and Sen. Kohl and Sen. Reed on the Senate side, who all endorse Net Neutrality.

At the same time, you have to recognize that AT&T immediately started backing away from the merger agreement, saying it shouldn't be national policy, and that AT&T and Verizon exercise considerable political influence on Capitol Hill. While the odds have improved a bit, it's by no means a slam dunk or any type of certainty that any sort of Net Neutrality legislation will be approved easily or quickly.

[NPD: Is there anything you wanted to add?]

There's this canard that's out there that Net Neutrality is all a plot on the part of big Web companies like Google to avoid paying their fair share of network costs. I think we need to realize two things.

First, big Web companies already pay millions of dollars for their Web access. They already pay what the phone company's charges. Nobody is getting anything for free.

Second, the concept of Net Neutrality is geared as much at the smaller person who hopes to become the next Google or Yahoo or YouTube as it is to the current big company. It is essentially a leveling concept. Companies with deep pockets will always make out, but it's the entrepreneurs, the innovators, or even someone with a personal Web site, that has always had an equal opportunity to reach an audience. That's how the Internet was established in the dial-up age, it's that concept that led to the explosion of the Internet, and it's a concept that we believe ought to carry forward into the future.

This article continues our series examining the issue of Network Neutrality. Other articles in this series include varied commentary from our in-house team of commentators, and an article opposing codification of network neutrality into law by Prof. Christopher Yoo at Vanderbilt University Law School.

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