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Currently, the word “Divergence” is gaining widespread currency. But, what are its consequences for an Open Internet and Net Neutrality? Is it simply Bifurcation which leads to Chaos? To Paradise Lost or to the Land of Make Believe?

Regular readers will be aware that I have always categorised an Open Internet and Net Neutrality as two separate and distinct entities. Thus, as long promised, let me try to contextualise what is the state of play over in the Good Old US-of-A. Hopefully, this shall enable you to assess the potential for divergence between the US, China, the EU, and, of course, the UK for 5G.

Probably the most critical critique of the revised FCC position on Tom Wheeler's Open Internet rules arises from the “Joint Comments of Internet Engineers, Pioneers, and Technologists on the Technical Flaws in the FCC’s Notice of Proposed Rule-making and the Need for the Light-Touch, Bright-Line Rules from the Open Internet Order” submission to the FCC, of 17th July 2017. (Subsequently copied to the appropriate committees in Congress via an Open Letter, of 12th December, signed by 21 people.)

This original document provides a forum to reflect the consensus of nearly 200 Internet Luminaries who signed it. However, it does not seem to me to cut it. Unfortunately, their stating that the FCC does not “fundamentally understand” how the Internet works leaves them exposed to the question of just how many of these Luminaries actually do understand how the Internet works? And, furthermore, can keep up with the divergent changes? The engineers of the FCC Bureau of Engineering and Technology and the Bureau of Wireless Telecommunications know exactly how the Internet functions.

These Luminaries concentrate on the two well-known fundamental Internet design principles but not, unfortunately, their very real interplay. The first principle, regards the layered network communications stack and the second, the End-to-End principle, highlighting that: “In order for a network to be general purpose, the nodes that make up the interior of the network should not assume that end points will have a specific goal when using the network or that they will use specific protocols; instead, application-specific features should only reside in the devices that connect to the network at its edge “.

Now, what is your understanding of these two principles to the distinction that is to be drawn between which principle is dominant for an Open Internet and which principle is dominant for Net Neutrality? Compromising one principle and you compromise what, when and where?
Clearly, FCC Chairman Ajit Pai understands politics far, far better than these Luminaries understand technology. Why am I critical of these Luminaries and this document? Simply because it omits areas where they are all likely to disagree. For there are certainly major disagreements over their competing visions of how the Internet shall evolve.

Nevertheless, I shall briefly extract two avenues these Luminaries touch on. They state that:
“There are two obvious examples of concrete changes in ISP behavior as a result of the Open Internet Order that have benefited consumers, separate from the prevention of harms described above.

First, prior to the Open Internet Order, many ISPs forbade their customers from attaching non-harmful devices to the network, thereby restricting how customers could use their Internet connections. The most prominent example of this is that prior to the Open Internet Order, many mobile broadband providers forbade their customers from tethering personal computers to their mobile devices to use their mobile broadband connection. However, since the Open Internet Order, that prohibition has disappeared from the terms of service of many mobile broadband providers (including Sprint and T-Mobile).

Similarly, prior to the Open Internet Order, many ISPs forbade their customers from using certain applications based on their type, without regard to whether or not the network was congested, or the customer had purchased sufficient bandwidth or a high enough data cap to support their use. For example, as of July2014, T-Mobile forbade its customers from using P2P services or using their service for “continuous Web camera posts or broadcasts.” However, as of July 2017, that prohibition no longer exists.

Similarly, prior to the Open Internet Order, Sprint forbade its customers from using their Internet access for certain activities (such as web hosting or “maintain[ing] continuous active network connections to the Internet such as through a web camera”). However, shortly after the publication of the Open Internet Order, those prohibitions were removed.