“As many others have noted, the exclusion of wireless from all but the transparency requirements is a dreadful idea,” wrote Cindy Cohn, general counsel and legal director for the Electronic Frontier Foundation in a legislative analysis of the proposal. “Neutrality should be the rule for all services, and a distinction between wired and wireless not only defies reason, it also abandons the portion of the Internet that is currently most lacking in openness and neutrality.”
Some, however, agree that the wireless arena is problematic. Mung Chiang, an associate professor of electrical engineering at Princeton University who studies the modeling, analysis, and design of networks, says that wireless carriers truly are dealing with unique problems of competition and network congestion, a trend that is only increasing as more types of wireless devices come on the market. Chiang believes it’s not a good idea to introduce regulations before the technology has solidified.
While Werbach agrees that wireless is different, he argues that the legislation needs to include conditions that would trigger the FCC to intervene once the market has matured.
Experts have also expressed concern that allowing carriers to offer additional services could undermine the public Internet. Gigi B. Sohn, president and cofounder of the advocacy firm Public Knowledge, said in a statement: “While there would be no pay for priority on the best efforts Internet, there are almost no limits on so-called ‘managed services,’ other than that they would need to be ‘distinguishable in purpose and scope’ from the Internet.”
Public Knowledge and other groups have expressed concern that carriers would have carte blanche to create special offerings that could exclude those on the public Internet.
Chiang says, however, that the Internet is already “a loose confederation of subnetworks,” and he believes it may be necessary to have special provisions for certain types of traffic. For example, it may be sensible to treat imaging data relating to an important surgical procedure differently from other traffic. He sees “nothing intrinsically wrong” with carriers creating special-purpose services, though he acknowledges the potential for abuse–if, for example, carriers used this as a way to ban competitors’ products.
Werbach agrees, saying, “There’s no perfect way to differentiate ahead of time. For example, I haven’t heard much concern that Comcast’s XFinity Digital Voice phone service, which has millions of subscribers, has undermined the open Internet. That’s a managed service that expressly discriminates and excludes other providers.”
Provided these loopholes are monitored, some see the Google-Verizon proposal as a positive move. “While most of the reaction has focused on Google,” Werbach says, “the fact that Verizon accepted enforceable nondiscrimination obligations is a major step in the right direction. Those who argue that broadband providers won’t invest without freedom to discriminate will have a much harder time making that case after this proposal.”