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Mobile Web Use Causes Challenges for Net Neutrality

The Federal Communications Commission’s 2010 Open Internet Rules, intended to prevent Internet service providers such as cable and phone companies from blocking or discriminating against content, didn’t cover wireless Internet services, or mobile broadband, to the same extent as fixed broadband.

The prohibition on blocking content was more limited for mobile services, and the ban on unreasonable discrimination against content providers didn’t apply to mobile at all. In rewriting its net neutrality rules after a federal appeals court struck down the bulk of them last January, one of the policy issues before the commission is whether it should re-examine how it treats mobile broadband.

“The basic issue that is raised is whether the old assumptions upon which the 2010 rules were based match the new realities,” FCC Chairman Tom Wheeler said at a CTIA-The Wireless Association industry event in September.

The reasoning for the different treatment of fixed and wireless broadband in 2010 included mobile being at an earlier stage of development and quickly evolving, which the FCC decided called for “measured steps.”

The rules noted there was more competition in the mobile sector and operational constraints that made it difficult to apply the broader Open Internet Rules to wireless.

The current proposal by the FCC tentatively suggests maintaining the same framework for how it treats mobile broadband, but notes there have been big changes in the marketplace since then, such as “how mobile providers manage their networks, the increased use of Wi-Fi, and the increased use of mobile devices and applications,” and asks whether the agency should re-examine its treatment of mobile broadband.

Wheeler said in his speech that the issues raised include whether the increase in users of LTE, the most advanced wireless communication standard, makes a difference. LTE had 200,000 subscribers when the 2010 rules were written; there are now 120 million subscribers.

In comments filed with the FCC, groups including Public Knowledge, the Internet Association, and the National Cable and Telecommunications Association contend that advances in mobile broadband make the previous distinction between mobile and fixed broadband no longer necessary.

“First, wireless networks have passed out of their infancy,” Public Knowledge wrote in its net neutrality comments earlier this summer. “The costs to society of exempting them from strict open Internet rules can no longer be justified on the grounds that wireless networks are in a fragile, early state of development.”

Proponents of setting the same framework for mobile and fixed broadband also point to the role of mobile broadband for poor and minority communities in accessing the Internet.

Latinos are behind on adopting fixed broadband connections at home, and at the same time are more likely to access the Internet exclusively through mobile, said Jessica Gonzalez, executive vice president and general counsel for the National Hispanic Media Coalition.

With large portions of the community accessing the Internet through mobile, it’s necessary the agency avoids creating “second-class digital citizens” by enforcing the same net neutrality rules for mobile and fixed broadband providers, she said.

And consumers are increasingly engaging in “wireless offloading,” where cellphone users connected, for example, through Verizon’s 4G network will switch to Wi-Fi in locations where that’s available, said Sarah Morris, senior policy counsel at the New America Foundations’ Open Technology Institute.

If the rules aren’t extended to wireless broadband, an individual connected to Internet via 4G at some point during the day wouldn’t be covered by net neutrality rules, but if they switch to a Wi-Fi connection a few minutes later, they would be covered, according to Morris.

Continuance of the 2010 framework for mobile would let wireless providers act as mobile gatekeepers and the market would developto their own benefit, said Ellen Stutzman, research and policy director at Writers Guild of America, West. “There won’t be a competitive wireless video market,” she said. “That’s obviously a concern for us.”

She also contended that industry arguments about operational constraints on their networks are a “little bit questionable,” given they’ve been coming out with data plans that allow for unlimited use of certain services or applications without counting against data caps.

The wireless phone and broadband industry argues the 2010 framework has been working, and allowing for investment and growth of related services. Mobile, they contend, is different from fixed broadband and it’s not yet a mature market.

“But given the competitive and the technical differences of mobile, as well as the track record of success under the 2010 rules that treated wireless differently, parity for parity’s sake is the wrong approach,” said CTIA president Meredith Attwell Baker.

There are “unique technical challenges” with mobile broadband that require more “complex and aggressive” network management compared to fixed broadband, said Chris Guttman-McCabe, the group’s executive vice president, at an FCC roundtable in September. He said a big change from the current framework would threaten the mobile ecosystem.

Wheeler has called into question some of the industry arguments, though. “Networks always manage to the millisecond,” he said at the roundtable. “There’s nothing special in wireless to that effect.”

Every network has management issues, he said.

“I can’t accept your hell-will-freeze over analogy,” Wheeler told Guttman-McCabe in response to his assertion that if the FCC had taken on the role of deciding reasonable network management for mobile broadband in the last round of Open Internet rules, the industry wouldn’t have grown as it has.

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