Certainly, requiring Comcast (CMCSA) to disclose more information about its traffic management practices seems a mere slap on the wrist for a company that deliberately interfered with BitTorrent traffic in violation of Internet openness principles. But Comcast, which wants a court to reverse and vacate the FCC decision, feels even it was too much.

“The order is unlawful because it enforced mere policy–not any provision of federal law–against Comcast,” the company said in a brief filed with the D.C. Circuit Court of Appeals this week. “The commission’s action was procedurally improper and violated bedrock principles of fair notice…the FCC erred in enforcing mere policy…and this court can and should dispose of this case on that ground alone.”

In other words, since the FCC’s Network neutrality principles haven’t yet been codified, Comcast can’t be held accountable for violating them. The FCC, of course, disagrees. In a filing of its own, it wrote, “[FCC] determinations were lawful and reasonable….Congress created the FCC for cases such as this one.”

Indeed. And while it’s true that those Net neutrality principles Comcast ran afoul of aren’t yet official rules, they clearly will be soon.

In a 13-page letter to the Federal Communications Commission Wednesday, the carrier again said that Google should play by the same rules as its telecom competitors. AT&T also took issue with the search giant’s claim that Google Voice restricts calls to certain rural areas to avoid the so-called traffic pumpers that route calls there to drive up charges.

“Contrary to the public pronouncements of Google and its allies, Google’s rural call blocking regime is not limited to Google simply blocking calls to ‘adult sex chat lines’ and ‘free’ conference calling services to avoid high access charges,” wrote AT&T’s senior vice president, Bob Quinn, in the letter to the FCC’s wireline bureau. “In fact, Google is blocking calls to, among others, an ambulance service, church, bank, law firm, automobile dealer, day spa, orchard, health clinic, tax preparation service, community center, eye doctor, tribal community college, school, residential consumers, a convent of Benedictine nuns, and the campaign office of a Member of the U.S. House of Representatives.”

My God. Google, the company whose business philosophy proudly proclaims “you can make money without doing evil,” blocking calls to small businesses? To Benedictine nuns? Don’t be evil?

Don’t be evil, my ass.

“We can now see the power of Internet-based applications providers to act as gatekeepers who can threaten the ‘free and open’ Internet,” Quinn continues. “Google’s double standard for ‘openness’–where Google does what it wants while other providers are subject to Commission regulations–is plainly inconsistent with the goal of preserving a ‘free and open’ Internet ecosystem.”

That established, Quinn goes in for the kill, arguing that the FCC should regulate the search giant not just on the wires, but on the Web as well.

“Google’s call blocking begs an even more important question that the Commission must consider as it evaluates whether to adopt rules regarding Internet openness,” he writes. “If the Commission is going to be a ’smart cop on the beat preserving a free and open Internet,’ then shouldn’t its ‘beat’ necessarily cover the entire Internet neighborhood, including Google? Indeed, if the Commission cannot stop Google from blocking disfavored telephone calls as Google contends, then how could the Commission ever stop Google from also blocking disfavored websites from appearing in the results of its search engine; or prohibit Google from blocking access to applications that compete with its own email, text messaging, cloud computing and other services; or otherwise prevent Google from abusing the gatekeeper control it wields over the Internet?”

An interesting question. And one for which Google (GOOG) is presumably already preparing a long-winded answer. This is far from over yet, and we’ll continue to go round and round until the FCC puts a stop to it.

“Recent reports indicate that Google’s Google Voice service restricts calling from consumers to certain rural communities,” the FCC wrote. “We are interested in gathering facts that can provide a more complete understanding of this situation.”

Though Google (GOOG) has until Oct. 28 to file a formal response, the search giant was quick to thump the tub in its defense on its Public Policy Blog. There, Rick Whitt, the company’s telecom and media counsel, argued again that Google Voice is not a traditional phone service and should not be regulated like one.

“Google Voice is not intended to be a replacement for traditional phone service–in fact, you need an existing land or wireless line in order to use it. Importantly, users are still able to make outbound calls on any other phone device,” Whitt wrote. “…AT&T apparently now wants web applications–from Skype to Google Voice–to be treated the same way as traditional phone services. Their approach is what a former FCC chairman has called ‘regulatory capitalism,’ the practice of using regulation to block or slow down innovation. And despite AT&T’s lobbying efforts, this issue has nothing to do with network neutrality or rural America. This is about outdated carrier compensation rules that are fundamentally broken and in need of repair by the FCC.”

“It’s very obvious that we are pushing the limits of the amount of capacity we have,” Jacobs said, adding that network neutrality regulations should not restrict operators’ ability to manage their networks.

“Operators should have the ability to say: ‘let’s be fair, this person’s moved a lot of data, this person’s used a little’, if they’re paying the same amount, then the person who’s used less will get more access….We are on the side of, yes, you have to be able to do something to manage your network, but it’s not the right thing to go in and say one service or another is OK.”

In other words, Qualcomm (QCOM) favors usage-based throttling. In theory, this should ensure that all customers get their fair share of bandwidth every hour of the day. In practice, however, it has meant something else entirely. So the question remains: If data traffic is to be shaped (and I am not saying that it should be), who will determine how it will be shaped and, more importantly, who can be trusted to make that determination fairly?

Jacobs’s remarks come a day after Federal Communications Commission Chairman Julius Genachowski reiterated the Obama administration’s call for network neutrality.

Yesterday, A group of House members from rural districts called on the Federal Communications Commission to investigate Google’s practice of blocking calls to numbers that use rural exchanges to charge inflated prices–something regulation prevents traditional telecom carriers from doing.

In their letter to the FCC, the lawmakers–among them Reps. Steve Buyer (R., Ind.), Charlie Melancon (D., La.), Michele Bachmann (R., Minn.) and John Barrow (D., Ga.)–claim that rural consumers will be harmed if Google is allowed to “evade compliance with important principles of access and competition.”

“We understand Google has asserted Google Voice is not a ‘traditional’ telephone service–despite its use of 10-digit telephone numbers and its ability to connect calls between telephones through a local exchange carrier,” the lawmakers wrote in the letter. “Instead, Google maintains it ought to be allowed to block calls to rural telephone exchanges–a position we find ill conceived and unfair to our rural constituents.”

This, of course, is pretty much what AT&T (T) said in September when it slagged Google (GOOG) as “one of the most noisome trumpeters of so-called net-neutrality” and asked the FCC to order it to “play by the same rules as its competitors.” Google, however, insists those rules don’t apply in its case.

“The FCC’s open Internet principles apply only to the behavior of broadband carriers–not the creators of Web-based software applications,” Google telecom counsel Richard Whitt wrote in response to AT&T’s complaint. “Even though the FCC does not have jurisdiction over how software applications function, AT&T apparently wants to use the regulatory process to undermine Web-based competition and innovation.”

“iPhone is an innovative device that dramatically changed the game in wireless when it was introduced just two years ago,” AT&T Mobility and Consumer Markets chief Ralph de la Vega said in a statement. “Today’s decision was made after evaluating our customers’ expectations and use of the device compared to dozens of others we offer.”

It was also doubtless made after evaluating Verizon’s (VZ) announcement this morning that it will begin offering phones running Google’s (GOOG) Android OS and its Google Voice app in a matter of weeks. I’m sure that Federal Communications Commission investigation was “evaluated” as well.

Anyway, good news for consumers–assuming AT&T’s network can handle the additional strain, which is anything but a sure thing at this point.

UPDATE: The VoIP community was quick to congratulate AT&T for the move. “All of us at Skype applaud today’s announcement by AT&T (in an FCC filing to be published shortly) that it’ll open up its 3G network to Internet calling applications such as Skype,” Skype CEO Josh Silverman wrote in a post to the company blog. “It’s the right step for AT&T, Apple, millions of mobile Skype users and the Internet itself. Nonetheless, the positive actions of one company are no substitute for a government policy that protects openness and benefits consumers. We’re all looking forward to further developments that will let people use Skype on any device, on any network.”

Neither filing provides much detail about either device beyond model number, though the keyboard described in one does appear to be smaller than the current model. That said, AppleInsider speculates that the mouse Apple (AAPL) is evidently working on will be significantly mightier than the current Mighty Mouse, scrapping the device’s rollerball in favor of a touch-sensitive housing and perhaps even an aluminum finish.

[IImage Credits: Engadget and MacBlogz]

Kara was half James Bond, half Indiana Jones in the cities and jungles of BoomTown this week. She jet-setted, jet-lagged and still managed to report on a genuine cougar fight.

BoomTown waved goodbye to merry old England and racked up some more frequent flier miles early in the week heading back to the techie embrace of Silicon Valley. Before her tray table was locked, though, Kara made a quick stop at music darling-of-the-moment Spotify. Daniel Ek, founder and CEO, hopes to bring its pay-per-month music service to millions of American mobile devices, to add to its hefty presence in the U.K. and Europe.

As D-Force One touched down at AllThingsD headquarters, one of the valley’s original major players shook things up with a $100 million branding move. Yahoo (YHOO), possibly now spelled Y!hoo, changed its brand in support of an overall shakeup of its services. Kara hearkened back to the D conference and wondered if rebranding the company Y!#@&$oo might have been more appropriate, considering CEO Carol Bartz’s preference for “salty” language.

And not to be left out of a worthy chuckle, BoomTown brought readers the inside scoop on the cougar that came to town. Yes, a cougar–or mountain lion, if you’re from California–was seem roaming the hills above Microsoft’s Redmond, Wash., campus this week. The company circulated a fairly priceless memo that included tips on how to successfully fight a cougar. Any such advice against snow leopards, however, was omitted.

As Kara was jet lagging, John was running full-tilt over at Digital Daily. On Monday, the Federal Trade Commission released a new proposal to institutionalize Net neutrality. The proposal would ban Internet service providers and data deliverers from prohibiting or throttling content to promote their own services. John pointed out that it wasn’t too surprising that AT&T (T)–and Republicans–weren’t too happy with the move.

While politicians exercised their series of tubes, Microsoft (MSFT) was busy shadow-tablet boxing. John filed a report about the first Microsoft device designed exclusively to compete with a product Apple (AAPL) doesn’t make. The “Courier,” as the two-page “tablet-book” is called, features some decidedly un-Apple-like interfaces, unless of course you look a little farther back to the days of the Newton.

To finish out the week, Digital Daily took the AllThingsD time machine back to 2003, when Apple was rolling out its revolutionary MMS service. Sometime Friday, iPhone users were suddenly able to share pictures with friends over the air. Unless they already use Flickr, Facebook, or about a zillion other apps that basically do the same thing.

MediaMemo explored its inner, or maybe outer, geek this week, beginning with the Gizmodo annual gallery show. The charity event featured musical Tesla coils, Star Trek props and a “Microsoft Surface”-like computer with a mud-based (not joking) user interface.

Peter continued the browsing theme, reporting that Yahoo and Google were both back in the market for acquisitions. Google (GOOG) CEO Eric Schmidt said he had his checkbook open again, now that “the worst is behind us.”

Even if Yahoo and Google are in a buying mood, one particular VC firm isn’t feeling so flush. New York’s Union Square Ventures opted out of the latest round of Twitter fund-raising. Peter hazarded a guess that the now-famous $1 billion valuation may have had something to do with it.

Across town at the Mossberg Solution, Katie gave readers a complete rundown on the Microsoft Zune HD. The iPod-hunting media player is now in its fourth generation. The player got high marks in the style and widgets categories, but still needs a solution to the confusing “points system” purchase interface. The problem with Zune isn’t the player, it seems, but the stuff Zune isn’t connected to.

It’s going to be another week of electro-awesomeness here at AllThingsD. Until then, always remember that you should never turn your back on a cougar. The safest way to escape is to buy it a pomegranate martini and squeeze out the window of the men’s bathroom.

Seems AT&T (T) feels that Google’s Google Voice Internet call-forwarding service violates federal rules designed to ensure that phone companies connect all calls. From the company’s letter:

Numerous press reports indicate that Google is systematically blocking telephone calls from consumers that use Google Voice to call telephone numbers in certain rural communities. By blocking these calls, Google is able to reduce its access expenses. Other providers, including those with which Google Voice competes, are banned from call blocking because in June 2007, the Wireline Competition Bureau emphatically declared that all carriers are prohibited from pursuing “self help actions such as call blocking.” The Bureau expressed concern that call blocking “may degrade the reliability of the nation’s telecommunications network.” Google Voice thus has claimed for itself a significant advantage over providers offering competing services. Google casually dismisses the Bureau’s Order, claiming that Google Voice “isn’t a traditional phone service and shouldn’t be regulated like other common carriers.” But in reality, “Google Voice” appears to be nothing more than a creatively packaged assortment of services that are already quite familiar to the Commission….

[The FCC] cannot, through inaction or otherwise, give Google a special privilege to play by its own rules while the rest of the industry, including those who compete with Google, must instead adhere to [FCC] regulations.

AT&T’s letter comes just days after FCC Chairman Julius Genachowski proposed six Net neutrality regulations that will apply to both wireline and wireless platforms. Interestingly, it also follows an FCC investigation into the rejection/delay of Google Voice for the iPhone.

UPDATE:

Google’s responded to AT&T’s letter in a post to the company blog, pointing out the differences between Google Voice and traditional phone service and questioning AT&T’s motives for appealing to the FCC.

“AT&T is trying to make this about Google’s support for an open Internet, but the comparison just doesn’t fly,” Richard Whitt, the company’s Washington telecom and media counsel, wrote. “The FCC’s open Internet principles apply only to the behavior of broadband carriers–not the creators of Web-based software applications. Even though the FCC does not have jurisdiction over how software applications function, AT&T apparently wants to use the regulatory process to undermine Web-based competition and innovation.”

Just hours after Julius Genachowski, chairman of the Federal Communications Commission, unveiled his open Internet proposal, a number of Republican senators stepped forward to oppose it. Arguing that Net Neutrality will “impede investment and innovation of new technologies,” Sen. Kay Bailey Hutchison (R., Texas) proposed an amendment to an Interior Department appropriations bill that would bar the FCC from using federal funds to implement the proposal.

“I am deeply concerned by the direction the FCC appears to be heading,” Hutchison, the ranking Republican on the Senate Commerce Committee, said in a statement. “Even during a severe downturn, America has experienced robust investment and innovation in network performance and online content and applications. For that innovation to continue, we must tread lightly when it comes to new regulations. Where there have been a handful of questionable actions in the past on the part of a few companies, the commission and the marketplace have responded swiftly.”

Joining her in proposing the amendment were Senators John Thune (R., S.D.), Sam Brownback (R., Kan.), David Vitter (R., La.), Jim DeMint (R., S.C.), and John Ensign (R., Nev.), who had this to say in a statement of his own:

“In this struggling economy, any industry that is able to thrive should be allowed to do so without meddlesome government interference that could stifle innovation. We must avoid burdensome government regulations that micromanage private businesses or that limit the ability of companies to provide what their customers want. The Internet has flourished in large part because of a lack of government interference; I see no need to change that now.”

Nor does AT&T (T), which–coincidentally, I’m sure–happens to be a top-20 donor not just for Ensign and Hutchison, but for the four other senators who would block Genachowski’s initiative as well. Said Jim Cicconi, AT&T’s senior executive vice president of external and legislative affairs: “AT&T would be very disappointed if [the FCC] has already drawn a conclusion to regulate wireless services despite the absence of any compelling evidence of problems or abuse that would warrant government intervention.”

“The Internet is an extraordinary platform for innovation, job creation, investment, and opportunity,” Genachowski said during an event at the Brookings Institute. “It has unleashed the potential of entrepreneurs and enabled the launch and growth of small businesses across America. It is vital that we safeguard the free and open Internet.”

To that end, Genachowski proposed that the FCC formalize its four principles of network openness. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled:

• to access the lawful Internet content of their choice.
• to run applications and use services of their choice, subject to the needs of law enforcement.
• to connect their choice of legal devices that do not harm the network.
• to competition among network providers, application and service providers, and content providers.

To these, Genachowski proposed adding two more: The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second would ensure that Internet access providers are transparent about the network management practices they implement.

Under Genachowski’s proposal, all six principles would apple to all platforms that access the Internet, something that will likely prove controversial with the likes of AT&T (T) and Verizon (VZ), whose wireless operations haven’t yet been subjected to the same kind of scrutiny as, say, Comcast (CMCSA), which ran afoul of the FCC last year when it was caught throttling Bit Torrent traffic.

These companies will no doubt argue that the FCC is overstepping its bounds in working to implement such principles. But Genachowski says that’s not the case. “This is not about government regulation of the Internet,” he said. “It’s about fair rules of the road for companies that control access to the Internet.”

Below, Genachowski’s speech in full:

Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity
Prepared Remarks of Chairman Julius Genachowski Federal Communications Commission
The Brookings Institution
Washington, DC
September 21, 2009

I’d like to thank Brookings for hosting me and this discussion about the future of broadband and the Internet.

We’ve just finished a summer of big-ticket commemorations, celebrating the 40th anniversaries of the Apollo landing and of Woodstock; 1969 was also a good year to be a kid in New York, with Joe Namath calling the Super Bowl, and the Knicks’ season that ended with the legendary Willis Reed in Game 7. I grew up a long fly ball from Shea Stadium and soaked up every minute of the Miracle Mets’ season. Maybe that’s why I tend to believe in miracles.

But perhaps the most momentous birthday from that famous summer of 1969 went by just a couple of weeks ago with little mention. Just over forty years ago, a handful of engineers in a UCLA lab connected two computers with a 15-foot gray cable and transferred little pieces of data back and forth. It was the first successful test of the ARPANET, the U.S.-government-funded project that became the Internet–the most transformational communications breakthrough since the printing press.

Today, we can’t imagine what our lives would be like without the Internet–any more than we can imagine life without running water or the light bulb. Millions of us depend upon it every day: at home, at work, in school–and everywhere in between. The Internet has unleashed the creative genius of countless entrepreneurs and has enabled the creation of jobs–and the launch of small businesses and the expansion of large ones–all across America.

That’s why Congress and the President have charged the FCC with developing a National Broadband Plan to ensure that every American has access to open and robust broadband. The fact is that we face great challenges as a nation right now, including health care, education, energy, and public safety. While the Internet alone will not provide a complete solution to any of them, it can and must play a critical role in solving each one.

Why has the Internet proved to be such a powerful engine for creativity, innovation, and economic growth? A big part of the answer traces back to one key decision by the Internet’s original architects: to make the Internet an open system.

Historian John Naughton describes the Internet as an attempt to answer the following question: How do you design a network that is “future proof”–that can support the applications that today’s inventors have not yet dreamed of? The solution was to devise a network of networks that would not be biased in favor of any particular application. The Internet’s creators didn’t want the network architecture–or any single entity–to pick winners and losers. Because it might pick the wrong ones. Instead, the Internet’s open architecture pushes decision-making and intelligence to the edge of the network–to end users, to the cloud, to businesses of every size and in every sector of the economy, to creators and speakers across the country and around the globe. In the words of Tim Berners-Lee, the Internet is a “blank canvas”–allowing anyone to contribute and to innovate without permission.

It is easy to look at today’s Internet giants–and the tremendous benefits they have supplied to our economy and our culture–and forget that many were small businesses just a few years ago, founded on little more than a good idea and a no-frills connection to the Internet. Marc Andreessen was a graduate student when he created Mosaic, which led to Netscape, the first commercially successful Web browser. Mark Zuckerberg was a college student in 2004 when he started Facebook, which just announced that it added its 300 millionth member. Pierre Omidyar originally launched eBay on his own personal website. Today more than 600,000 Americans earn part of their living by operating small businesses on eBay’s auction platform, bringing jobs and opportunity to Danvers, Massachusetts, Durham, North Carolina and Lincoln, Nebraska, and many other communities in both rural and urban America. This is the power of the Internet: distributed innovation and ubiquitous entrepreneurship, the potential for jobs and opportunity everywhere there is broadband.

And let us not forget that the open Internet enables much more than commerce. It is also an unprecedented platform for speech, democratic engagement, and a culture that prizes creative new ways of approaching old problems. In 2000, Jimmy Wales started a project to create a free online encyclopedia. He originally commissioned experts to write the entries, but the project only succeeded after moving to volunteers to write them collaboratively. The result is Wikipedia, one of the top 10 most visited websites in the world and one of the most comprehensive aggregations of human knowledge in our history. The potential of collaboration and social media continues to grow. It is changing and accelerating innovation. And we’ve seen new media tools like Twitter and YouTube used by democratic movements around the globe.

Even now, the Internet is beginning to transform health care, education, and energy usage for the better. Health-related applications, distributed over a widely connected Internet, can help bring down health care costs and improve medical service. Four out of five Americans who are online have accessed medical information over the Internet, and most say this information affected their decision-making. Nearly four million college students took at least one online course in 2007, and the Internet can potentially connect kids anywhere to the best information and teachers everywhere. And the Internet is helping enable smart grid technologies, which promise to reduce carbon dioxide emissions by hundreds of millions of metric tons.

At the same time, we have also seen great strides in the center of the network. Most Americans’ early exposure to the Internet was through analog modems, which allowed a trickle of data through the phone lines to support early electronic bulletin boards and basic email. Over the last two decades, thanks to substantial investment and technological ingenuity, companies devised ways to retrofit networks initially designed for phones and one-way video to support two-way broadband data streams connecting homes and businesses across the country. And a revolution in wireless technologies–using licensed and unlicensed spectrum–and the creation of path-breaking devices like the Blackberry and iPhone have enabled millions of us to carry the Internet in our pockets and purses.

The lesson of each of these stories, and innumerable others like them, is that we cannot know what tomorrow holds on the Internet, except that it will be unexpected; that the genius of American innovators is unlimited; and that the fewer obstacles these innovators face in bringing their work to the world, the greater our opportunity as citizens and as a nation.

Notwithstanding its unparalleled record of success, today the free and open Internet faces emerging and substantial challenges. We’ve already seen some clear examples of deviations from the Internet’s historic openness. We have witnessed certain broadband providers unilaterally block access to VoIP applications (phone calls delivered over data networks) and implement technical measures that degrade the performance of peer-to-peer software distributing lawful content. We have even seen at least one service provider deny users access to political content. And as many members of the Internet community and key Congressional leaders have noted, there are compelling reasons to be concerned about the future of openness.

One reason has to do with limited competition among service providers. As American consumers make the shift from dial-up to broadband, their choice of providers has narrowed substantially. I don’t intend that remark as a policy conclusion or criticism–it is simply a fact about today’s marketplace that we must acknowledge and incorporate into our policymaking.

A second reason involves the economic incentives of broadband providers. The great majority of companies that operate our nation’s broadband pipes rely upon revenue from selling phone service, cable TV subscriptions, or both. These services increasingly compete with voice and video products provided over the Internet. The net result is that broadband providers’ rational bottom-line interests may diverge from the broad interests of consumers in competition and choice.

The third reason involves the explosion of traffic on the Internet. With the growing popularity of high-bandwidth applications, Internet traffic is roughly doubling every two years. Technologies for managing broadband networks have become more sophisticated and widely deployed. But these technologies are just tools. They cannot by themselves determine the right answers to difficult policy questions–and they raise their own set of new questions.

In acknowledging the existence of challenging competitive, economic, and technological realities for today’s Internet, I want to underscore that this debate, as I see it, isn’t about white hats or black hats among companies in and around the network. Rather, there are inevitable tensions built into our system; important and difficult questions that we have an obligation to ask and to answer correctly for our country.

When I worked in the private sector I was fortunate to work with some of the greatest innovators of our time. That taught me some lessons about the importance of innovation and investment. It also taught me the importance of developing clear goals and then being focused and practical in achieving them, making sure to have the best input and ideas from the broadest group possible.

I am convinced that there are few goals more essential in the communications landscape than preserving and maintaining an open and robust Internet. I also know that achieving this goal will take an approach that is smart about technology, smart about markets, smart about law and policy, and smart about the lessons of history.

The rise of serious challenges to the free and open Internet puts us at a crossroads. We could see the Internet’s doors shut to entrepreneurs, the spirit of innovation stifled, a full and free flow of information compromised. Or we could take steps to preserve Internet openness, helping ensure a future of opportunity, innovation, and a vibrant marketplace of ideas.
I understand the Internet is a dynamic network and that technology continues to grow and evolve. I recognize that if we were to create unduly detailed rules that attempted to address every possible assault on openness, such rules would become outdated quickly. But the fact that the Internet is evolving rapidly does not mean we can, or should, abandon the underlying values fostered by an open network, or the important goal of setting rules of the road to protect the free and open Internet.

Saying nothing–and doing nothing–would impose its own form of unacceptable cost. It would deprive innovators and investors of confidence that the free and open Internet we depend upon today will still be here tomorrow. It would deny the benefits of predictable rules of the road to all players in the Internet ecosystem. And it would be a dangerous retreat from the core principle of openness–the freedom to innovate without permission–that has been a hallmark of the Internet since its inception, and has made it so stunningly successful as a platform for innovation, opportunity, and prosperity.

In view of these challenges and opportunities, and because it is vital that the Internet continue to be an engine of innovation, economic growth, competition and democratic engagement, I believe the FCC must be a smart cop on the beat preserving a free and open Internet.

This is how I propose we move forward: To date, the Federal Communications Commission has addressed these issues by announcing four Internet principles that guide our case-by-case enforcement of the communications laws. These principles can be summarized as: Network operators cannot prevent users from accessing the lawful Internet content, applications, and services of their choice, nor can they prohibit users from attaching non-harmful devices to the network.

The principles were initially articulated by Chairman Michael Powell in 2004 as the “Four Freedoms,” and later endorsed in a unanimous 2005 policy statement issued by the Commission under Chairman Kevin Martin and with the forceful support of Commissioner Michael Copps, who of course remains on the Commission today. In the years since 2005, the Internet has continued to evolve and the FCC has issued a number of important decisions involving openness. Today, I propose that the FCC adopt the existing principles as Commission rules, along with two additional principles that reflect the evolution of the Internet and that are essential to ensuring its continued openness.

The fifth principle is one of non-discrimination–stating that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers’ homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.

This principle will not prevent broadband providers from reasonably managing their networks. During periods of network congestion, for example, it may be appropriate for providers to ensure that very heavy users do not crowd out everyone else. And this principle will not constrain efforts to ensure a safe, secure, and spam-free Internet experience, or to enforce the law. It is vital that illegal conduct be curtailed on the Internet. As I said in my Senate confirmation hearing, open Internet principles apply only to lawful content, services and applications–not to activities like unlawful distribution of copyrighted works, which has serious economic consequences. The enforcement of copyright and other laws and the obligations of network openness can and must co-exist.

I also recognize that there may be benefits to innovation and investment of broadband providers offering managed services in limited circumstances. These services are different than traditional broadband Internet access, and some have argued they should be analyzed under a different framework. I believe such services can supplement–but must not supplant–free and open Internet access, and that we must ensure that ample bandwidth exists for all Internet users and innovators. In the rulemaking process I will discuss in a moment, we will carefully consider how to approach the question of managed services in a way that maximizes the innovation and investment necessary for a robust and thriving Internet.

I will propose that the FCC evaluate alleged violations of the non-discrimination principle as they arise, on a case-by-case basis, recognizing that the Internet is an extraordinarily complex and dynamic system. This approach, within the framework I am proposing today, will allow the Commission to make reasoned, fact-based determinations based on the Internet before it–not based on the Internet of years past or guesses about how the Internet will evolve.

The sixth principle is a transparency principle–stating that providers of broadband Internet access must be transparent about their network management practices. Why does the FCC need to adopt this principle? The Internet evolved through open standards. It was conceived as a tool whose user manual would be free and available to all. But new network management practices and technologies challenge this original understanding. Today, broadband providers have the technical ability to change how the Internet works for millions of users–with profound consequences for those users and content, application, and service providers around the world.

To take one example, last year the FCC ruled on the blocking of peer-to-peer transmissions by a cable broadband provider. The blocking was initially implemented with no notice to subscribers or the public. It was discovered only after an engineer and hobbyist living in Oregon realized that his attempts to share public domain recordings of old barbershop quartet songs over a home Internet connection were being frustrated. It was not until he brought the problem to the attention of the media and Internet community, which then brought it to the attention of the FCC, that the improper network management practice became known and was stopped.

We cannot afford to rely on happenstance for consumers, businesses, and policymakers to learn about changes to the basic functioning of the Internet. Greater transparency will give consumers the confidence of knowing that they’re getting the service they’ve paid for, enable innovators to make their offerings work effectively over the Internet, and allow policymakers to ensure that broadband providers are preserving the Internet as a level playing field. It will also help facilitate discussion among all the participants in the Internet ecosystem, which can reduce the need for government involvement in network management disagreements.

To be clear, the transparency principle will not require broadband providers to disclose personal information about subscribers or information that might compromise the security of the network, and there will be a mechanism to protect competitively sensitive data.

In considering the openness of the Internet, it is also important to recognize that our choice of technologies and devices for accessing the Internet continues to expand at a dizzying pace. New mobile and satellite broadband networks are getting faster every day, and extraordinary devices like smartphones and wireless data cards are making it easier to stay connected while on the go. And I note the beginnings of a trend towards openness among several participants in the mobile marketplace.

Even though each form of Internet access has unique technical characteristics, they are all are different roads to the same place. It is essential that the Internet itself remain open, however users reach it. The principles I’ve been speaking about apply to the Internet however accessed, and I will ask my fellow Commissioners to join me in confirming this.

Of course, how the principles apply may differ depending on the access platform or technology. The rulemaking process will enable the Commission to analyze fully the implications of the principles for mobile network architectures and practices–and how, as a practical matter, they can be fairly and appropriately implemented. As we tackle these complex questions involving different technologies used for Internet access, let me be clear that we will be focused on formulating policies that will maximize innovation and investment, consumer choice, and greater competition.

I’ve talked about what we need to do; now I’d like to talk about how we should do it. I will soon circulate to my fellow Commissioners proposed rules prepared by Commission staff embodying the principles I’ve discussed, and I will ask for their support in issuing a notice of proposed rulemaking. This notice will provide the public with a detailed explanation of what we propose to do and why.

Equally importantly, the notice will ask for input and feedback on the proposed rules and their application, such as how to determine whether network management practices are reasonable, and what information broadband providers should disclose about their network management practices and in what form. And–as I indicated earlier–it will pose a series of detailed questions on how the Internet openness principles should apply to mobile broadband.

While my goals are clear–to ensure the Internet remains a free and open platform that promotes innovation, investment, competition, and users’ interests — our path to implementing them is not pre-determined. I will ensure that the rulemaking process will be fair, transparent, fact-based, and data-driven. Anyone will be able to participate in this process, and I hope everyone will. We will hold a number of public workshops and, of course, use the Internet and other new media tools to facilitate participation. Today we’ve launched a new website, www.openinternet.gov, to kick off discussion of the issues I’ve been talking about. We encourage everyone to visit the site and contribute to the process.

Some have argued that the FCC should not take affirmative steps to protect the Internet’s openness. Let me be clear about what this is about, and what it isn’t.

The fundamental goal of what I’ve outlined today is preserving the openness and freedom of the Internet. We have an obligation to ensure that the Internet is an enduring engine for U.S. economic growth, and a foundation for democracy in the 21st century. We have an obligation to ensure that the Internet remains a vast landscape of innovation and opportunity.

This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity, and entrepreneurial activity.

This is not about protecting the Internet against imaginary dangers. We’re seeing the breaks and cracks emerge, and they threaten to change the Internet’s fundamental architecture of openness. This would shrink opportunities for innovators, content creators, and small businesses around the country, and limit the full and free expression the Internet promises. This is about preserving and maintaining something profoundly successful and ensuring that it’s not distorted or undermined. If we wait too long to preserve a free and open Internet, it will be too late.

Some will seek to invoke innovation and investment as reasons not to adopt open Internet rules. But history’s lesson is clear: Ensuring a robust and open Internet is the best thing we can do to promote investment and innovation. And while there are some who see every policy decision as either pro-business or pro-consumer, I reject that approach; it’s not the right way to see technology’s role in America.

An open Internet will benefit both consumers and businesses. The principles that will protect the open Internet are an essential step to maximize investment and innovation in the network and on the edge of it–by establishing rules of the road that incentivize competition, empower entrepreneurs, and grow the economic pie to the benefit of all.

I believe we share a common purpose–we want the Internet to continue flourishing as a platform for innovation and communication, with continued investment and increasing deployment of broadband to all Americans. I believe my fellow Commissioners share this purpose, and I look forward to working collaboratively with them in this endeavor.

In closing, we are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It’s to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.

If that’s the case, those discussions can’t be going very well. Presumably, if they were, we wouldn’t have seen the publication of Google’s damning comments to the FCC. Anyway, Google (GOOG) doesn’t seem to have provided any correspondence in which Apple (AAPL) described Google Voice as being “rejected.” Unless Google can do that, this is a case of he-said/Steve-said. And we all know who comes out on top when that happens.

Asked by the Federal Communications Commission in August if it had rejected Google’s Voice app from its iTunes App Store, Apple (AAPL) claimed it had not and that the app was still under review.

“Contrary to published reports, Apple has not rejected the Google Voice application, and continues to study it,” Apple explained to the FCC. “The application has not been approved because, as submitted for review, it appears to alter the iPhone’s distinctive user experience by replacing the iPhone’s core mobile telephone functionality and Apple user interface with its own user interface for telephone calls, text messaging and voicemail.”

The FCC put the same question to Google (GOOG) and received a very different answer, which was revealed this morning when Google allowed an unredacted version of the document it submitted to the commission to be made public. Here’s how Google responded to the FCC’s question:

Apple’s representative informed Google that the Google Voice application was rejected because Apple believed the application duplicated the core dialer functionality of the iPhone. The Apple representative indicated that the company did not want applications that could potentially replace such functionality.

… In a series of in-person meetings, phone calls and emails between July 5 and July 28, 2009, Apple and Google representative discussed the approval status of the Google Voice application that was submitted on June 2, 2009. The primary points of contact between the two companies were Alan Eustace, Google Senior Vice President of Engineering and Research and Phil Schiller, Apple Senior Vice President of Worldwide Product Marketing. On July 7, Mr. Eustace and Mr. Schiller spoke over the phone. It was during this call that Mr. Schiller informed Mr. Eustace that Apple was rejecting the Google Voice application for the reasons described above.

Ah, I see. So by “delayed,” Apple apparently meant “rejected.” Interesting. The full document, below.

UPDATE: As I report in a later post on this unfolding story, Apple has denied Google’s assertion to the FCC that it rejected the Google Voice app.

9182009_Google_Filing_iPhone –

It’s going to be a rough couple of months for the wireless industry.

As expected, the Federal Communications Commission on Thursday approved a broad inquiry into the wireless market. In a unanimous vote, the agency’s five commissioners–three Democrats and two Republicans–approved two so-called notices of inquiry, one that will examine competition and innovation and another that will evaluate truth-in-billing practices.

“I can’t think of a more important moment to be considering these issues,” FCC chairman Julius Genachowski told a hearing in Washington. “Many Americans are learning to do more with less. A surprise charge on a monthly bill, or a new service that does not perform as advertised, can be a major budget-buster, especially as household spending on communications grows ever larger. This FCC will have a relentless focus on innovation and investment, on competition and consumers.”

Genachowski added that these inquiries could lay the groundwork for the examination of other industries such as cable and Internet. “I hope the new wireless competition report will help set a standard for fact-based, analytically deep analysis of the mobile industry,” he said. “It is essential that the commission develop policies that encourage a new generation of innovators, working with new tools, on new platforms, and having an extraordinary impact on our economy and society.”

The wireless industry’s trade group, CTIA, welcomed the inquiry through gritted teeth, saying it “appreciates the opportunity to respond” to the FCC’s questions. “The wireless ecosystem–from carriers to handset manufacturers to network providers to operating-system providers to application developers–is evolving before our eyes and this is not the same market that it was even three years ago,” said president and chief executive Steve Largent. “In this industry, innovation is everywhere.”