Technical Group Formation Adds Another Twist in Reclassification Fight

"The TAG will function as a neutral, expert technical forum and promote a greater consensus around technical practices within the Internet community,” Hatfield said in a written statement. “The TAG would consider a number of factors in looking at technical practices, including whether a practice is used by others in the industry; whether alternative technical approaches are available; the impact of a technical practice on other entities; and whether a technical practice is aimed at specific content, applications or companies."

The group was in the works before FCC Chairman Julius Genachowski announced his “third way” reclassification proposal last month, said analyst Paul Gallant of Washington Research Group. “It’s a welcome development from the cable and telco perspective because it suggests an effort at collaboration on net neutrality, which is a key reason why the FCC is considering a Title II approach,” he told us. Genachowski had no comment on formation of the group, his spokeswoman said.

"The new … group could undoubtedly play a valuably constructive role going forward, but its formation is probably unlikely to significantly alter the political dynamics surrounding the broadband reclassification debate,” predicted Jeff Silva, analyst at Medley Global Advisors. “It seems the germane issue continues to be one of settling on a solid, legally sustainable broadband framework that protects consumers without unduly interfering with legitimate business operations of service providers.”

"I doubt [a] purely voluntary approach would head off an FCC move,” an industry source said. “If industry can agree on things that facilitate targeted legislation actually getting enacted this year, it could head off the need for FCC action, but seems like an uphill battle."

Public Knowledge President Gigi Sohn said such groups have a role to play, but they're no substitute for regulatory oversight. “Given that this advisory group is only just getting off the ground, we are cautiously optimistic that it may do some good,” she said. “We note that the group as constituted is currently dominated by the telecommunications industry. In addition, we emphasize that regardless of the degree of technical expertise of this private-sector group, it is not a substitute for Federal Communications Commission rules and enforcement procedures and it certainly should not be interpreted as such by anyone."

"While there is nothing wrong with industry attempting to identify broadband network management practices that do not harm users, this or any other voluntary effort is not a substitute for the government setting basic rules of the road for the Internet,” agreed Free Press Policy Counsel Chris Riley. “Even if this group puts out excellent recommendations, they will be just that -- recommendations."

Reclassification opponents said the announcement shows the FCC doesn’t need to change how broadband is regulated. “There’s a strong sense in the industry that we see self government models as helping run the Internet already,” said Mike Wendy, vice president of external affairs at the Progress and Freedom Foundation, in an interview. “For many, these models are more desirable than having the FCC jump in and decide these issues."

"This announcement just provides one more reason why Chairman Genachowski should ditch the reclassification proposal,” said Free State Foundation President Randolph May. “Rather than embarking on a risky course that a majority in the House of Representatives now oppose, including many influential Democrats, why not step back and give some developmental breathing room to new self-regulatory and conciliation mechanisms such as TAG? It is likely that when Congress ultimately legislates to give the FCC some authority over broadband ISPs, the legislation will require some prior resort to such mechanisms before the FCC may sanction ISPs."

The creation of TAG is welcome step toward self-regulation of the Internet, said Tom Lenard, president of the Technology Policy Institute. “It leaves network management decisions in the hands of the experts -- engineers who actually understand the technical issues -- and illustrates that it is possible for private actors to voluntarily handle disputes without government involvement,” he said.

There’s much work to be done to formalize the group, said Brent Olson, AT&T assistant vice president of public policy, but “this effort demonstrates the interdependence of all players and their mutual interest in and desire for innovation in the internet platform.” NCTA President Kyle McSlarrow said the group “creates a strong foundation for an inter-industry forum to allow technical and engineering experts to discuss technical issues and best practices."

Google also expressed support, but called TAG “a work in progress.” Its purpose “is not to replace the oversight and enforcement authority of the FCC or any other government body,” said Washington Telecom and Media Counsel Richard Whitt in a blog post. “We hope the [group] can bring together some of the smartest technical minds in this space to provide some useful guidance to policymakers and Internet stakeholders alike."

Similar groups have formed to address technical issues and this one “will have to prove it is taking a different approach or its work could prove redundant,” the National Telecommunications Cooperative Association said. TAG’s “focus on policy may be the distinguishing factor,” a spokeswoman said. The group could have a significant role in advising the FCC if it is “expert enough to properly answer the difficult questions concerning network management,” and isn’t “just a front for deep-pocketed special interests,” she said. Title II regulation is necessary, she said, “to provide the FCC with the legal authority to enforce any future net neutrality rules concerning reasonable network management, even if the rules are proposed by this group and eventually adopted by the FCC.”