By Matthew Lasar,  (Google News UK)

The Federal Communications Commission is releasing the details of its new net neutrality Order in stages. Although the FCC’s new ban on “unreasonable discrimination”

for cable Internet service allows certain forms of discrimination on the traffic (all bits must be identical) the agency made clear after Tuesday’s meeting that “paid prioritization” deals with Internet companies are unlikely to be allowed.

Critics had worried that the new Order would only affect outright website blocking, leaving paid prioritization untouched (or even implicitly sanctioned).

“Pay for Priority Unlikely to Satisfy ‘No Unreasonable Discrimination’ Rule,” advises one subheading of the new net neutrality rules. Ed Whitacre’s dream of directly charging Google and Yahoo to “use his pipes” — a key event in starting the entire net neutrality debate — appears to be dashed.

“A commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic in the connection to a subscriber of the broadband provider (i.e., ‘pay for priority’) would raise significant cause for concern,” the Commission then elaborates. This is because “pay for priority would represent a significant departure from historical and current practice.”

With Regard To Dealing

As we pointed out, new FCC rules prohibit Internet service providers to block legitimate content and demand transparency in ISP. They also require that the network management package and discrimination must be “reasonable” but it applies only to wireline broadband. wireless operators get a pass on rationality, they are limited to transparency and blocking provisions.

Here is the text of the Commission “does not unfairly discriminate” Rule:

A person engaged in the provision of fixed broadband Internet access, to the extent that person is, not unreasonably discriminate in the transmission of broadband traffic in the legal service’s consumer Internet access. reasonable network management is no unjustified discrimination.

What are “reasonable network management” practices? Here:

A system of management practice is reasonable if it is appropriate and adequate to achieve a legitimate objective of managing the network, taking into account the network architecture and service access to broadband technology.

Legitimate purposes of network management are: to ensure network security and integrity, including addressing the traffic that is harmful to the network, which deals with traffic that users do not want (including the starting point for actors), as for example by providing services or features in users’ choices of child lock feature or safety, and reduce or alleviate the effects of network congestion.

“Specialized services” like IPTV (AT & T U-Verse to think) will also be provided in the last mile of broadband, although the FCC insists that his behavior shows anti-competitive deployment. But the order does not clearly indicate that the offers are a priority, “likely” to enter this “reasonable” part.

Second, the priority is to represent a “break with the longstanding rules” and “could cause great harm to innovation and investment and on the Internet.”

They would raise barriers on entry for edge providers and could also boost “transaction costs arising from the need to reach agreements with one or more broadband providers to access a critical mass of potential users.”

Thirdly, to pay the primary objective could harm users in lower end of the economic ladder – the bloggers, students, libraries, schools, advocacy groups.

“Although skeptics recognize that open Internet to pay for priority use may disadvantage non-commercial network, which are generally less able to pay for priority and the Internet is a big important platform.”.

Finally, ISPs pay for a growing priority service “would have an incentive to limit the quality of service provided to non-priority traffic.” As some game developers worry, ISPs could effectively service fees noninferiority investment “in the open access and more services that can provide for a bonus.”

Why not? First, “since the beginning of the Internet,” the agency said: “The ISPs generally do not have a particular content or applications providers to meet costs of retail providers subscriber services prices or press the offers pay-for priorities and object contains no evidence that U.S. broadband providers currently included in those plans. ”

“In light of each of these concerns, in general, it is unlikely to pay for priority would be compliant with no unfair discrimination ‘, this part of the order the FCC concluded. “The use of a provider of broadband Internet connection priority to its own content, applications or services or those of its subsidiaries would raise the same serious concern and will be subject to the same standards and considerations in assessing the equity as a third party pay for priority schemes. ”

History

All of these assertions will soon be contested. AT&T has all but told the FCC that it could live with net neutrality rules… provided those rules give a green light to priority access arrangements.

As AT&T warned the FCC a year ago, a “strict” nondiscrimination provision “would completely ban voluntary commercial agreements for the paid provision of certain value-added broadband services, which would needlessly deprive market participants, including content providers, from willingly obtaining services that could improve consumers’ Internet experiences.”

On top of that, AT&T has its own take on the history of this matter. The ISP insists that paid priority access was “fully” and even “expressly” contemplated by the Internet Engineering Task Force decades ago as it mapped out the ‘Net’s key protocol, TCP/IP.

But the Center for Democracy and Technology pushes back that AT&T is misreading early IETF documents, which were purposed to “describing the technical architecture needed to deploy differential services not the payment schemes that may be associated with it.”

Hi, Level 3

Then there is a dispute whether the sticky Level 3 Communications, and Comcast are monitoring this area. Internet backbone and content delivery network that supports provider Comcast has crossed the line by charging subscribers to transfer a movie from Netflix Comcast network data. Comcast pushes back, this is the only private peering / transit traffic dispute with Level 3, the sudden need for an economic response.

When asked if the FCC would scrutinize the Level 3 dispute, Chairman Julius Genachowski responded that the agency was “looking into it.” It seems likely that if controversies like this keep coming up, complaints invoking the FCC’s new Order will be filed, requiring the Commission to look into the matter quite a bit over the coming months.

Or maybe not. Comcast seems quite sanguine about Tuesday’s decision.

“While we look forward to reviewing the final order, the rules as described generally appear intended to strike a workable balance between the needs of the marketplace for certainty and everyone’s desire that Internet openness be preserved,” Comcast Vice President David Cohen declared. “Most importantly, this approach removes the cloud of Title II regulation that would unquestionably have harmed innovation and investment in the Internet and broadband infrastructure.”

Reasonable And Timely

Rather than regulation of Title II common carrier, a large part of the legal framework of the Order is based on Article 706 of the Communications Act, which requires the FCC to “encourage the deployment of a reasonable and adequate capacity advanced telecommunications for all Americans. ”

That this and various other parts of the Act that the FCC relies survive judicial review is an interesting example, but there are other possible legal Bugbear ahead. ISPs also insist that they have the right to cut the first amendment concerns the priority of access to content providers.”The First Amendment protects the right to decide not only what to say, but how to say it’s” the former National Cable & Telecommunications Association CEO Kyle McSlarrow announced last year. “It ‘s really the first amendment to allow the government to ban the content provider or application to pay to acquire the means to distribute its content, form or fashion that you want?”

How all this plays out? It depends on how the FCC has created this advisory, and that challenge the government’s response.

“We have a legal basis for the rules we have adopted today, which is very strong – that gives us the authority we need,” said Genachowski a press conference held after the open session of Tuesday the Commission. “And I’m sure he will be in court.”