FCC seeks comment on how wireless should be regulated for 'open Internet'

The Federal Communications Commission released a further notice of proposed rulemaking that specifically addresses how wireless networks and specialized services should be managed under the agency’s plan to preserve open access to the Internet.
Specifically, the agency is seeking comments on how wireless providers should address transparency, devices and applications. Comments are due 30 days from being published in the Federal Register and and reply comments 55 days after that.
“The NPRM seeks comment on ‘how, to what extent, and when’ openness principles should apply to mobile wireless platforms, with a particular emphasis on furthering innovation, private investment, competition and freedom of expression,” the agency said. “Mobile broadband providers such as AT&T Mobility and Leap Wireless (Cricket) have recently introduced pricing plans that charge different prices based on the amount of data a customer uses. The emergence of these new business models may reduce mobile broadband providers’ incentives to employ more restrictive network management practices that could run afoul of open Internet principles. Additionally, Verizon and Google issued a proposal for open Internet legislation that would exclude wireless, except for proposed transparency requirements.”
By and large, wireless carriers and wireless industry trade association CTIA have maintained that wireless technology is different from wireline technology, and that operators need to be able to manage their networks for all of their subscribers. Further, there are technology issues in that a GSM-based device cannot run on a CDMA network.
“We understand all options remain on the table, with the driving force apparently being Chairman Genachowski’s desire to identify a path that leads to a compromise without abandoning fundamental open internet principles and doing so in a way that acknowledges real-time political realities/economic implications of resetting broadband policy in the aftermath the D.C. Circuit’s decision in April to limit FCC internet jurisdiction,” said Jeffrey Silva, senior policy director at Medley Global Advisors L.L.C.
“As such, the continued push to reach a middle ground on broadband framework/net neutrality represents (on at least a couple levels) a potential positive for telecom and cable broadband operators such as AT&T (T), Verizon (VZ), Comcast (CMCSA) and Cablevision (CVS). The FCC’s new solicitation for comments tends to suggest Chairman Genachowski is not necessarily locked in on a Title II solution even if he is keeping that option in play. Second, if Republicans recapture the House, it could become more difficult for the FCC chairman to pursue theTitle II option.”
Silva also said the FCC likely wants to see if any new ideas come out of talks taking place between stakeholders in meetings sponsored by the Information Technology Industry Council.
Beyond seeking comment on transparency so end users, content, device and applications companies can make “informed choices” regarding mobile broadband providers, the proposal asks a number of questions about devices and applications.
“Can adherence to industry standards for mobile wireless networks ensure non-harmful technical interoperability between mobile broadband devices and networks? Will deployment of next-generation technologies (e.g., LTE) further facilitate interoperability? To the extent that compliance with technical standards needs to be validated through laboratory testing, could such testing be conducted through independent authorized test centers? Were the commission to require mobile providers to allow any non-harmful device to connect to their network, subject to reasonable network management, how would mobile broadband provider conduct have to change, if at all, in light of existing device certification programs?”
The agency also is seeking comments on how applications are tied to the network. “To what extent should mobile wireless providers be permitted to prevent or restrict the distribution or use of types of applications that may intensively use network capacity, or that cause other network management challenges? Is the use of reasonable network management sufficient, by itself or in combination with usage-based pricing, to address such concerns? Should mobile wireless providers have less discretion with respect to applications that compete with services the provider offers? How should the ability of developers to load software applications onto devices for development or prototyping purposes be protected?”
The FCC is also concerned about network operators that have their own apps stores. “If providers were to be prohibited from denying or restricting access to applications in their capacity as network providers, should they nevertheless have discretion regarding what apps are included in app stores that they operate? Are there safe-harbor criteria that, if met by a provider, would ameliorate potential concerns? For example, if a provider’s customer had a choice of several app store providers that offered applications that could be downloaded onto the customer’s mobile device, would that adequately mitigate concerns about potentially anti-competitive or anti-consumer effects of a provider excluding applications from its own app store?”
The agency also is questioning if web-based applications should be regulated differently than native applications.