Comments were filed yesterday on the first round of the FCC’s inquiry into the role of managed services and wireless in the Open Internet issue. This particular deadline wasn’t as dramatic as previous milestones in the Open Internet/net neutrality matter because of recent Congressional missteps on Internet policy, but the comments may turn out to be the most useful in the long term. This is because the debate over regulating the Internet has tendered to meander around among a wide array of issues ranging from free speech to vertical integration to app store policies to the size of Rupert Murdoch’s bank account and the standing of American broadband networks versus those in the rest of the world, areas largely outside the FCC’s purview. Meanwhile, the issues that are clearly inside the FCC’s span of authority, such as service differentiation and wireless deployment have drawn scant attention because they’re just not that sexy.

As a lead-up to the TPRC conference and the filing deadline on the Two Questions, we held a panel discussion at ITIF on managed services.

I’ve taken part in a number of net neutrality discussions over the years, and this was the best by far because it was the best-focused and most constructive, with essentially no grandstanding and with a high ratio of useful information to noise. And I don’t say that just because I organized it, because I’ve organized several others. The presentation by Scott Jordan of UC Irvine was particularly worthwhile because it was right to the point and well illustrated. Scott’s generally a fan of net neutrality, as most of us are in some sense, but he’s also an ethical and well-informed computer science professor who gets the fact that a technical ban on practices that might be judged discriminatory is much less worthwhile than economic scrutiny. Hank Hultquist of AT&T raised some eyebrows with his observation that Title II doesn’t ban Differentiated Services:

AT&T executive Hank Hultquist said on Friday that reclassifying broadband from an information service to a public utility would not prohibit carriers from prioritizing some content over others.

“Reclassification is not much of a threat to prioritization,” Hultquist said “the FCC has decades of precedence of tariffs that were deemed lawful for the provision of prioritization.”

…Hultquist’s comment suggests that the FCC’s third-way approach may not lend the commission the power to stop “paid prioritization”, the most-feared practice by net neutrality advocates.

Pushback from Harold Feld on this argument followed, of course, and I’ll leave it to the lawyers to tell us who’s right.

Despite the pause in the net neutrality drama at the moment, there was good coverage within Washington on the comments filed with the FCC on the Two Questions. Politico’s Morning Tech lead off with my comments:

PARSING THIS WEEK’S OPEN INTERNET FILINGS – Tuesday at midnight marked the first deadline in the FCC’s look into net neutrality rules for managed services and wireless Web. We scanned the lengthy briefings – the ones we could find, anyway – so you don’t have to:

ITIF argues on mobile Web in particular that “the FCC would be wise to rely on the traditional Four Freedoms supplemented by a transparency requirement than to impose a hard-to-define stricture against traffic engineering in the wireless space or by attempting to enact restrictions on app stores.” More on that and its stance on managed services: http://bit.ly/aIN421

TR Daily covered the ITIF comments as well:

The Information Technology & Innovation Foundation said that the Internet lacks the(QoS) provisions “needed by wideband communication-oriented applications such as telepresence,” thus forcing those who wish to use such applications to “bypass the Internet in whole or in part” through a specialized or managed service offering.

Advocates of simply increasing bandwidth to avoid QoS requirements “ignore the fact that the content-oriented applications and protocols consume all available bandwidth on shared facilities by design, while communication-oriented applications moderate their own bandwidth consumption,” ITIF said. It said that financial regulation of Internet bypass service offerings would be “reasonable” but not technical restrictions on their deployment and use.

As for mobile broadband, ITIF said, “[T]he FCC would be wise to rely on the traditional Four Freedoms [outlined by former FCC Chairman Michael K. Powell] supplemented by a transparency requirement than to impose a hard-to-define stricture against traffic engineering in the wireless space or by attempting to enact restrictions on app stores. The development of organic institutions such as the Broadband Internet Technical Advisory Group (BITAG) should also be encouraged.”

TR Daily also cited Scott Jordan:

“[A]llowing end users to pay for QoS is in line with the call for a neutral Internet,” University of California, Irvine, computer science professor Scott Jordan and fellow Gwen Shaffer said. They also expressed the “conviction that it is possible for ISPs to manage traffic without employing techniques that discriminate against users, content, or applications.” They opposed the establishment of policy grounded in an “arbitrary” definition of specialized or managed services.

Better late than never, we’re finally talking about real technical issues after beating around the bush for past five years.