Internet Access Should Be Application-Agnostic

[Commentary] The Federal Communications Commission can balance the interests of web services innovators and consumers with those of telephone and cable companies without changing the substance of the proposed network neutrality rule simply by defining application-specific discrimination as unreasonable.

Barbara van Schewick, a professor at the Stanford Law School, says the correct approach is, "A non-discrimination rule that would ban all application-specific discrimination (i.e. discrimination based on applications or classes of applications), but would allow application-agnostic discrimination." The brilliance of this approach is that it offers cable and telephone companies great flexibility to package and price their services and to manage their networks without harming investment and innovation in web services. If a user wants more packets or less latency, an access provider should be able to sell that to them. But for that access service to meet the test of being application-agnostic, the choice of when to use these services and for which applications must be left to the user. Similarly, if a user consumes a disproportionate share of packets at certain times of day, a network provider should be able to temporarily reduce that user's throughput to avoid degrading the experience of others. These actions would not threaten a free and open Internet because they are targeted at a consumer's use of network capacity, not a specific application. On the other hand, if access providers throttled only the bandwidth available to BitTorrent to deal with congestion, that would clearly be application-specific discrimination. Blocking or throttling video would be discrimination against a class of applications.

This approach works equally well for wireless. If an older wireless network does not have the capacity to handle lots of packets at peak times, it can reasonably limit the number of packets available to users. When congestion is eased it can open up the pipe again. This is reasonable network management that does not distort the competitive market for web services. Blocking or discriminating against a specific web service like Skype or against a whole class of web services like streaming video would be prohibited under this framework. If it is not possible to solve all network management problems on older wireless networks in an application-agnostic way, there could be an exception; but the presumption should be that network management would be as application-agnostic as possible.

[Burnham is a technology entrepreneur]