There has been a great deal of concern about language in the recent FCC call for rule making on network neutrality.  The FCC notice is intended to develop a definition of net neutrality along the lines proposed in the rule making.  The concern is directed at language that would permit network operators (I always use the words network operators because these rules would apply to Internet and non-Internet networks) to conduct ‘reasonable network management.  The Ars Technica article makes one glaring error; there is nothing about ‘tiering‘ that violates net neutrality, but it is a bad idea for a lot of other reasons.   First, here are the principles the FCC has offered for public comment:

“Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:

1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;

2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;

3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the


4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service

providers, and content providers;

5. would be required to treat lawful content, applications, and services in a non-discriminatory manner; and

6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and

content, application, and service providers to enjoy the protections specified in this rule making.”

Now first of all, let’s give the FCC a great big hand for doing such a fine job putting the definition of network neutrality into words, and going much further than most folks would have imagined.  Now, the way the FCC phrased it, they made all six principles subject to the prefatory phrase ‘reasonable network management.’  That is not the way I would do it.  Only principle 5 (OK maybe 4, too) needs to be made subject to reasonable network management, because none of the rest of the  principles implicate any kind of network management at all.  I would like to see the Commission simply take the phrase ‘subject to reasonable network management’ and move it down to principle 5.  Then there would be no confusion that any of the other principles would somehow be compromised by allowing the network operators to ‘manage’ them.

If we can define network neutrality in six pithy phrases, I don’t see why we can’t take a whack at defining reasonable network management in a few pithy phrases also.  My framework for this is based on my research concerning comparative telecommunications laws, and specifically the European Union Framework Directive and Access Directive.  I’m not going to dissect the EU directives here, but I wanted to give some background.

The basic principles for reasonable network management:

1.  The management must be directed to traffic on the network.  It must be directly related to a specific, identifiable traffic problem existing on the network.  If audited, the operator should be able to show what the problem was; it is an identified situation.  This excludes peremptory management, for example taking actions to prevent a traffic problem.  The correct action to peremptorily address traffic is to expand the capacity on the network.  The rule is addressed this way intentionally, so that a network operator will be forced to open or expand capacity to solve traffic congestion.   Network management must stop as soon as the congestion has cleared.

2.  The network operator cannot discriminate between one kind of data and another to management traffic congestion.  The operator must act to remove the congestion, not the data.

3.  To help improve service during periods of congestion, the operator can prioritize certain data.  For example, if an episode of congestion made it hard for voice data to travel over the network (thereby rendering some voice-over-IP apps inoperable), the operator could prioritize voice data.  But the operator cannot retard other data.  Actually, the scenario painted by US ISPs of slowing some data to somehow create some space (??) for other data to move faster, like on a freeway, just doesn’t make sense.  That is not how a data network works.  The analog between freeways and networks breaks down.

4.  The operator cannot act to improve the ‘user experience.’  Since the operator is handling data for all kinds of users, who are sending data as well as receiving it, the operator would have to pick and choose which users’ experience to improve.  Obviously, this can’t be done because how do you choose?  This may also violate the rule against peremptory management.   Network management must occur on the network, not at the user.

5.  All management must be transparent.  Operators are limited to the use of management that meets the technical standards and specifications laid down by the Commission.   Operators must provide a complete description of the methodology they use for network management to anyone who asks.

6.  A network operator cannot refuse network access based on ‘reasonable network management grounds.’ “Where obligations are imposed on operators that require them to meet reasonable requests for access to and use of networks elements and associated facilities, such requests should only be refused on the basis of objective criteria such as technical feasibility or the need to maintain network integrity.”  (EU Access Directive)  When you send a message to someone on another network, you are ‘accessing’ the network.

7.  Network operators cannot manage the network in any way that distorts competition.  For example, they cannot refuse access or slow down access from some competitors, but not others.  They cannot favor their own traffic over others’.

That is pretty much it.  If the FCC wants to define the terms of reasonable network management, I see no reason they cannot.  I strongly urge the Commission to regulate network management in a way that is consistent with the rest of the world.  There is no US Internet or EU Internet.  There is just an Internet, and network operators and users should be able to use it the same way wherever they are.