When Ofcom published its Discussion Document on ’Traffic Management and Net Neutrality’ earlier this year, one of my concerns was that the regulator was seeking too much prescription of what it would regard as ‘reasonable’ traffic management practice. I pointed out at the time that this was in contrast to the case-by-case approach being advocated by the FCC (notably in its earlier adjudication of the Comcast dispute with BitTorrent), and I endorsed the FCC’s reasoning for this policy. First, the Commission had noted that the Internet is still at a formative stage and it therefore hoped to provide some guidance to consumers and the industry “without unduly tying our hands should the known facts change.” Second, the FCC explained that because Internet networks are so complex, it was not confident that a “one-size-fits-all approach is good policy.” Finally, the FCC argued that the restraint of a case-by-case approach best suited the wider recognition that “broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.”
Following last week’s (narrow) FCC vote to approve new Net Neutrality rules, I’m glad to see that the earlier pragmatism has been preserved in the detailed provisions of the FCC'S Order. As before, the document stresses the need to ‘balance clarity with flexibility’, and this remains the approach towards regulation of traffic management policies. For instance: “A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose… Broadband providers should have flexibility to experiment, innovate, and reasonably manage their networks… We will further develop the scope of reasonable network management on a case-by-case basis, as complaints about broadband providers’ actual practices arise”. Bravo!
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