Public Interest Groups Ask FCC to Tighten Wireless Provisions in Net Neutrality Order

Proposed rules subject wireless to a transparency requirement, but not other provisions, in general, with a promise to revisit wireless in two years, FCC officials said. The order in its current form says wireless models are still developing, so putting rules in place would be premature, agency officials said. If the rules are approved as proposed, the light-handed treatment of wireless would be a relative victory for the wireless industry, sources agree.

Free Press filed a letter at the FCC Tuesday offering what it said is real world evidence of a “brave new discriminatory mobile Internet world” that “should give policymakers pause.” It cited in particular recent presentations by Allot and Openet, a deep packet inspection company and a billing software company, which have jointly developed a solution “that will enable mobile wireless providers to block, prioritize and discriminate against Internet content based on its source.”

The technology the two companies have developed should be a warning call for the commission, Free Press said. “The unholy alliance between these two companies and wireless carriers is a sneak peek at the future we can expect if the Commission passes policies that divide the Internet along mobile and fixed connections -- a market defined by business partnerships built around nickel and diming consumers and controlling the pace of mobile app innovation.” The Rural Broadband Policy Group raised similar issues in a Tuesday filing. “Wireless Internet service is a lifeline in remote areas,” the group said. “Wireless Internet infrastructure, cell phones, and cell phone plans are more affordable; cellphones are easier to use and there are more cell phone providers than Wired Internet providers in rural areas. That is why Wireless Internet services and the consumers who rely most on Wireless service deserve the same protections afforded Wireline services."

The wireless issue has emerged as the most critical, Research Director Derek Turner of Free Press, who wrote the filing, said in an interview. The group has highlighted two other problems as well with the rules, he noted: The lack of a firm prohibition on paid prioritization and various definitional issues that could create loopholes. “The first two are loopholes and loopholes can, at a later date, either be exploited or tightened,” Turner said. “The reason the focus is on wireless is because this rule will be explicitly saying it’s okay for a company like AT&T to discriminate and block applications, not for network management purposes, but for purely economic-motivated purposes. That is something that is essentially irreversible."

Another public interest group official said it’s not clear how negotiations are going between the three Democratic commissioners on strengthening the wireless and other provisions. “My sense is that the chairman’s office, Copps’s office and, to a certain extent, Clyburn’s office, are still feeling each other out,” the source said. “The chairman has basically been saying we have this big 10 coalition here and we can’t change anything without losing too many people and we've got to do it like this or not at all … and Copps has been saying that’s not good enough."

Clyburn asked Genachowski to impose tougher net neutrality restrictions on wireless, to take a tougher line on paid prioritization and to expand the definition of broadband, before she'll vote for the proposed order, commission officials said. Clyburn initially had taken a “wait and see” approach but had been generally supportive of the chairman’s compromise approach to net neutrality (CD Dec 2 p1). The biggest issue for Clyburn is wireless, FCC officials said. She’s concerned that, as more people “cut the cord,” they'll be isolated by weak “no blocking” language in the proposed order, they said. Clyburn is pushing to include language that would forbid wireless managers from degrading traffic, subject to “reasonable network management.” Negotiations among Genachowski, Copps and Clyburn will probably stretch through the weekend, an FCC official said.

There “could be some give-and-take on a possible presumption against paid prioritization and some tweaks to the broadband Internet access service definition -- up to a point,” Stifel Nicolaus analysts wrote in a Wednesday research note. “The two Democratic Commissioners can block approval of the net neutrality rules, but we believe it’s in the majority’s interests to coalesce around a decision. So while we expect some tough bargaining that goes down to the wire next Tuesday, our sense is an order likely will be approved, with some modifications, but not radical changes, to the draft, given the tightrope the FCC leadership appears to be walking."

A letter sent Wednesday by a majority of Senate Republicans to Genachowski called on him to back off on net neutrality rules. “The Internet as an open platform for innovation is not an aspiration, it is a reality -- the United States does not need new burdensome regulations to make it so,” the letter said. “This is an unjustified and unnecessary expansion of government control over private enterprise.”