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News that Google and Verizon are negotiating "better than best efforts" Internet routing probably comes across as a betrayal of sorts to network neutrality advocates (see http://www.nytimes.com/...). Bear in mind that Information Service Providers ("ISPs") do not file public contracts known as tariffs and have the freedom to negotiate deals with individual clients. On the other hand ISPs, regardless of their FCC regulatory classification, cannot engage in unfair trade practices that achieve anticompetitive goals such a tilting the competitive playing field in favor of a corporate affiliate, or special third party.

In my work on network neutrality I have considered what ISPs can do to provide upstream content providers service enhancements. When March Madness arrives with the college basketball tournaments I want content providers to have the option of securing priority treatment of their video bits. Streaming video has greater bandwidth and bit rate requirements and ISPs should have the option of providing greater assurances that the bits will arrive on time. IPTV consumers will not tolerate a slide show presentation of video streams coupled with frozen frames, artifacts and other service glitches.

So what's fair and what's not?

It should be a foregone conclusion by now that ISPs have the option of diversifying service away from a plain vanilla, "one size fits all" business model. Better than best efforts traffic routing can represent a legitimate response to consumer requirements. Put another way many forms of price and quality of service differentiation seem reasonable if ISPs operate in a transparent and nondiscriminatory manner. This means that ISPs should have the option of offering better than best efforts, but not solely to one "most favored" venture, and in a way that guarantees increasingly inferior service to everyone else. ISPs should not deliberately drop packets to discipline or punish specific content providers who have opted not to pay more for superior service. ISPs should not partition their bandwidth so that the plain vanilla users face certain congestion.

I do not recall reading or hearing any network neutrality advocate condemning the services of Akamai and other ventures that enhance Internet traffic routing. Perhaps all these companies limit their enhancement to reducing router numbers and distributing content closer to end users so that the final leg or two, still routed via best efforts, will not degrade performance. So if Akamai offers permissible enhancements what is wrong with ISPs themselves providing similar enhancements? Perhaps it is ISPs' ability and incentive to engage in harmful meddling of traffic coupled with opportunities to do so in a stealth mode not easily detected, or remedied by regulatory agencies. So distrust and at least some instances to corroborate it drive some of the network neutrality advocacy.

ISPs cannot simply provide reassurances voiced by CEOs, that they would never block or degrade service, particularly now that the FCC lacks jurisdiction and the FTC apparently lacks interest in enforcing such commitments. Similarly I am not keen on the FCC brokering some grand deal negotiated by select stakeholders. Ideally Congress should enact specific and narrow mandate for the FCC to enforce ISP transparency and non-discrimination, not as Title II regulated common carriers, but as information service providers subject to specific, straightforward and reasonable expectations.

If the Google-Verizon deal results in legislation, or specific and enforceable ISP commitments, then the outcome won't be all bad.

By Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law. Visit the blog maintained by Rob Frieden here.

Related topics: Access Providers, Broadband, IPTV, Net Neutrality, Policy & Regulation