-- Barbara van Schewick, Stanford Law School; and
-- Tim Wu, Columbia Law School.
They've all "spent many years devoted to research on the architecture of the Internet and its related policies (and) published widely on" Net Neutrality.
On November 2, they emailed Chairman Genachowski to "flag what (they) believe are two (serious) ambiguities in the Notice that (they) hope can be addressed early to provide a clearer foundation for comments:"
For nearly a century, this has been a central concept in telecommunications law and policy. Nothing should be done to subvert it, so a clear definition is essential. So far, it's "surprisingly narrow."
"Reasonable Network Management"
It's a significant ambiguity because what's not reasonable is "key to the entire rule."
The professors "seek to understand whether, by (NPRM's) language, the Commission seeks comments on what the standard should be, or whether (it) proposes not to have one."
They ask why "the FCC would not want to provide some guidance on the applicable standard for reasonable network management, lest....the exception swallow the rule," and want clarification now to prevent it. Otherwise, these ambiguities will "provide generous opportunities to try to work around the Commission's efforts in this area." In other words, subvert Net Neutrality, not affirm it.
To be effective, FCC rules and congressional legislation must be unambiguous and strong with clear standards in the public interest, especially regarding content.
Free Press Policy Brief on the FCC's Proposed Net Neutrality Rule
Free Press calls the NPRM "a very important step in the right direction," but some elements need clarification to "preclude ISP's from preventing their customers from sending and receiving lawful content, running lawful applications, or connecting lawful devices to the network." Also to assure them free choice among network, applications, service, and content providers.
If properly crafted, new rules will establish a legal framework to require nondiscriminatory treatment of all Internet traffic under reasonable, fair network management standards. Yet significant ambiguities may subvert final ones because of loopholes that must be avoided.
So far, it appears that the FCC "is very committed to protecting the open Internet with rules that have meaning and teeth....This is clearly a very good start (that) lays a good foundation for a final rule that will serve as an unassailable, yet appropriately flexible, firewall to protect and preserve the open Internet." With precise clarification, established standards "once enacted will withstand scrutiny in the courts" and be a victory for digital democracy. But not easily against powerful interests determined to subvert it, so therein lies the struggle ahead.
Disturbing Implications of The Anti-Counterfeiting Trade Agreement (ACTA) for Net Neutrality, Consumer Privacy, and Civil Liberties