The GigaOM Guide to the Net Neutrality Debate

capitolUpdated: Senate Republicans last night backed off a plan aimed at popping the net neutrality balloon floated by the FCC on Monday, according to the Washington Post. This is smart thinking, as there’s still much to learn and a lot less to fear about the proposed regulatory rules than naysayers would have the average person believe. We’re going to be hearing a lot of hyperbole about net neutrality in the coming months, but there are three areas on which readers, the industry and regulators should focus.

So far most ISPs have come out against net neutrality regulation — not because they’re against net neutrality per se, but because they’re against regulation, which they argue tends to get the government and bureaucratic processes involved, potentially slowing the pace of innovation. However, a lack of regulation can also slow innovation — witness the eight-month time frame for the FCC investigation into Comcast’s decision to block P2P files and imagine a startup having to fight through a probe that lasted that long. So as the FCC makes its decisions around network neutrality we need to see clearly defined plans on how to detect and censure violators of network neutrality relatively quickly. (I’m thinking a month at most.)

The fact that the FCC is allowing for “reasonable network management” in both wireless and wired networks is another key topic in this debate. Throughout the rulemaking process, everyone from ISPs to consumer rights’ organizations to average, broadband-loving citizens will be able to comment on what constitutes reasonable network management. I highly doubt that the end result will be free reign for P2P on wireless networks or other types of traffic that tend to lead to heavy network congestion. I also doubt that the fears espoused by David Young of Verizon (s vz) in Monday’s panel discussion regarding the inability of a wireless carrier to predict real-time traffic demands on their networks will be a big problem.

One of Young’s contentions was that, given the limited capacity on area towers, allowing net neutrality on a wireless network could cause problems for carriers because during peak congestion times– such as during the inauguration or an industry conference — those carriers abiding by net neutrality rules couldn’t prioritize voice or text traffic over more bandwidth-intensive activities, such as, say, someone’s lifestreaming. Figuring out how to prioritize traffic on wireless networks with limited capacity will have to be defined under reasonable network management.

The final item over which the debate will rage is the issue of transparency for any network management plans, the sixth principle that Genashowski introduced on Monday. During the public comment period we need to know how far carriers or ISPs can go in limiting services on their network as long as they disclose it in their terms of service. For example, if AT&T prohibits redirecting television traffic to the iPhone over its 3G network and discloses that fact, would that be a violation of the proposed network neutrality? If it’s not, and disclosure in the terms of service, or releasing a detailed plan for network management as Comcast has done, is enough, then the effects of net neutrality on carriers shouldn’t be as big a deal as they make it out to be. However, it also means consumers won’t be able to get Slingbox or VoIP applications on their iPhones over the AT&T 3G network.

So as the public comments get under way, we should be looking for a clear plan for finding and censuring those that violate principles of net neutrality, a definition of reasonable network management, and an understanding of whether or not ISPs’ TOS restrictions will count as being transparent enough.Any regulations endorsed by the FCC should quickly solve violations of net neutrality, but should also tread lightly when it comes to dictating how ISPs can manage their networks. Update: On Thursday, the FCC said it will vote on the net neutrality proposal at an open meeting scheduled for Oct. 22, and after that meeting, if the proposal is approved, the agency will start taking comments as part of the rulemaking process.