FCC's Copps renews call for a network non-discrimination principle

As first reported by Broadcasting & Cable and confirmed by multiple other sources, in a breakfast-time speech last Friday before a conference of cable TV executives, the acting chairman of the US Federal Communications Commission called once again for the drafting of an amendment of sorts to its 2005 policy framework (PDF available here), adding one new principle to its existing list of four. The "Fifth Principle," as it may come to be known for years hence, would explicitly mandate that carriers provide non-discriminatory Internet access to all available services and applications.

The origins of the "Fifth Principle," as well as the belief that one was needed in the first place, dates back to the debate over the 2006 re-merger of AT&T with its own former "Baby Bell," BellSouth. While many lawmakers were debating how best to avoid the topic of addressing the efficacy of the merger, some were drafting proposed laws that would prevent the merged entity from disabling access to competitive services through its own network.

Sens. Olympia Snowe (R - Maine) and Byron Dorgan (D - N.D.) had, even for years up until then, drafted legislation that would effectively affix network neutrality as the law of the land. At the time, the Senators offered what had been a separate bill to that effect as an amendment to a video franchise bill -- one which would make it easier for newly enhanced carriers such as AT&T to resell and distribute videos through their network. Dorgan and Snowe were under the opinion that if AT&T could enter this game, it could conceivably block others from offering similar quality service through AT&T's network.

For that reason, they believed they should attach their net neutrality provisions, one of which would compel AT&T and other broadband service providers to "enable any content, application, or service made available via the Internet to be offered, provided, or posed on a basis that is reasonable and non-discriminatory, including with respect to quality of service, access, speed, and bandwidth; [and] is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider."

The Snowe-Dorgan amendment failed, due to a concerted effort from members of both parties, who wanted the discussion tabled until a later date when it could be tabled again. And that's exactly what happened, as both senators re-introduced their bill in both houses of Congress in February 2008, and as the bill languished until the end of the term.

But in the meantime, the language from the amendment -- being an abbreviated form of the larger Internet Freedom Preservation Act -- lingered on. A small advocacy group called the It's Our Net Coalition suggested that the orphaned language be adopted by the FCC as the Fifth Principle for regulating broadband carriers.

"The Commission should establish a fifth principle requiring AT&T to commit to treating in a nondiscriminatory manner all Internet traffic traversing its broadband facilities in either direction," wrote Coalition attorneys Richard Whitt and Gerald Waldron in their original October 2006 FCC petition (PDF available here). Citing the amendment, they continued, "It's Our Net suggests the formulation put forth this past summer by Senators Olympia Snowe and Byron Dorgan in their proposed joint amendment to video franchise legislation in the Senate. In the context of this merger proceeding, such language would state that end users are entitled to broadband services from AT&T 'that shall not discriminate in their carriage and treatment of Internet traffic based on the source, destination or ownership of such traffic.'"

The re-emergence of the Fifth Principle is especially timely now, in light of AT&T's comments last Friday indicating that it was up to Apple to somehow prevent iPhone users from downloading applications such as Skype that would compete with AT&T services. (How Apple would accomplish this, while also leaving open the opportunity for users of iPod Touch -- not affiliated with AT&T -- to have Skype, was never suggested.)
B&C cites Acting Chairman Copps as having told his host, NCTA President Kyle McSlarrow, last Friday as being in favor of an enforceable Fifth Principle, and alluding to some type of enforcement mechanism that would remain "alive," in his words, in the face of evolving technology, though no source present at last Friday's breakfast meeting has offered further details.