By Matt Wood, American Constitution Society Blog guest post

Federal Communications Commission Chairman Julius Genachowski delivered in a big way this morning on one of the key technology and telecommunications policy promises from the Obama campaign. Genachowski announced, in a speech at the Brookings Institution in Washington, D.C., that his agency would “take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas.” (President Obama publicized today’s move too, taking time during his speech in Troy, NY, on innovation and sustainable growth to promote the FCC announcement.)

Studiously avoiding use of the hot-button term “net neutrality,” Genachowski proposed formalizing the FCC’s role as “a smart cop on the beat preserving a free and open Internet.” He announced that the agency would open a rulemaking process to consider formal adoption of the Commission’s existing four Internet principles – guidelines adopted in 2005 on the watch of Republican FCC Chairman Michael Powell – as well as new principles requiring non-discrimination and transparency by wireline and wireless broadband providers.

Genachowski succinctly summarized the FCC’s existing four principles, saying that already today, “[n]etwork operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.”

Beyond codifying the four principles establishing that framework, the Chairman proposed two new tenets that would join the earlier guidelines in the FCC rules: a non-discrimination principle that would “allow users to decide what content and applications succeed” on the Internet, and a principle requiring transparency from providers of broadband Internet access regarding their network management practices.

Finally, he proposed considering in the rulemaking process whether open Internet rules should apply to mobile networks. Genachowski recognized the qualities of wireless networks, yet stressed the importance of keeping the Internet open no matter how users choose to access it: from a desktop, laptop or smartphone.

The non-discrimination principle would prevent broadband providers from blocking or degrading lawful traffic that runs over their networks, and would stop providers from “favoring some content or applications over others in the connection to subscribers’ homes … just because [a service] competes with a similar service offered by that broadband provider.” The FCC proposal would, however, still allow broadband providers to engage in “reasonable” network management – allowing for non-discriminatory traffic management practices during periods of network congestion.

Genachowski also emphasized, repeating an observation from his confirmation hearings this summer, that “open Internet principles apply only to lawful content, services and applications – not to activities like unlawful distribution of copyrighted works, which has serious economic consequences.” He also left the door open for broadband providers to offer what are called “managed services” not subject to typical treatment, and promised fact-based, case-by-case determinations for any alleged violations of the non-discrimination mandate.

Despite claims by net neutrality opponents that regulation of the Internet would be unprecedented, the FCC has taken action previously to sanction anticompetitive practices. In 2005, the FCC moved swiftly to prevent telephone company Madison River from blocking a Vonage VoIP service that competed against the telco’s own offerings. In 2008, the FCC found unlawful Comcast’s practice of “throttling” and blocking certain peer-to-peer file-sharing traffic flowing over the cable giant’s broadband network.

Comcast appealed the FCC’s decision on the grounds that the agency does not have jurisdiction over the Internet, complaining too that the lack of formal rules provided Comcast with inadequate notice about the agency’s policies. The case is currently before the DC Circuit, with the FCC’s brief in response to Comcast’s challenge due at the court today. Media Access Project and other public interest organizations involved in the case believe that the FCC had ample jurisdiction to act, based on a host of statutes that delegate to the agency the authority to regulate all interstate communications by wire or radio in the United States. MAP and others also believe that the DC Circuit should reject Comcast’s notice-based challenge, but would welcome the adoption of formal rules designed to preserve the open Internet.

Comcast’s conduct in the run-up to the FCC decision demonstrates the need for the newly proposed sixth principle, which would require transparency in network management. As Chairman Genachowski recounted this morning, Comcast provided no notice to subscribers when it started throttling and blocking this peer-to-peer traffic. Moreover, Comcast originally denied that it was doing any such thing, only admitting its practice after several individuals and organizations definitively proved that blocking had occurred and complained to the FCC about it. The sixth principle would not require broadband providers to disclose personal information about subscribers or sensitive network security details. It would, however, require broadband providers to be open about their traffic management practices.

In closing, Chairman Genachowski argued that his plan “is not about government regulation of the Internet, [but] about fair rules of the road for companies that control access to the Internet.” He promised to “do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity, and entrepreneurial activity,” as the FCC works to protect the Internet when “broadband providers’ rational bottom-line interests may diverge from the broad interests of consumers in competition and choice.” Anticipating criticisms that have been lobbed at net neutrality proposals in the past, Genachowski suggested that “history’s lesson is clear: Ensuring a robust and open Internet is the best thing we can do to promote investment and innovation.”

The FCC likely will vote on and release its notice of proposed rulemaking at its October open meeting.