Reports say that the Federal Communications Commission is revving up to formally release its long-awaited (or hated) open Internet rules. The agency has sent the regulations to the Office of Management and Budget, which will determine whether they comply with the Paperwork Reduction Act. If that goes according to plan, they'll get published on the Federal Register, making them official.

At the same time, the Commission is looking for candidates for its Open Internet Advisory Committee, tasked with "tracking developments with respect to the freedom and openness of the Internet."

We're talking October—at the earliest—before these rules are finally enforceable. And once that happens, it's likely that Verizon and/or MetroPCS will once again ask a federal court to strike them down (three months ago a judge ruled the companies couldn't sue until the provisions were formally released).

Meanwhile, at least a few people will doubtless cite the neutrality provisions to complain about ISP behavior. And we're betting that controversial restrictions on third-party tethering applications will come under some kind of scrutiny.

Indeed, they already have. As we've reported, Free Press wants the FCC to take a close look at Google's move to curtail access (or, as Google puts it, making them "unavailable for download" via the Android Market) to independent 4G tethering apps. Those indie tethering downloads are a sweet deal; for the initial price of the software, they allow you to connect your mobile to your laptop and access the Internet. Similar apps from your ISP can cost as much as $30 a month.

Please see Google

Google and the ISPs have formed a circular finger-pointing squad concerning this issue. The search engine giant says it is curtailing the technology in response to requests from wireless carriers. But when we asked Google's Droid partner Verizon for its version of the story, we got a "see Google" response. "It's important to remember, Google manages what's available in the Android Market," a Verizon spokesperson told us.

Regardless of where it started, Free Press says that this sort of behavior represents a violation of the C Block open device access rules that Verizon agreed to when it bought a huge chunk of 700MHz spectrum on the license area in question. "Removing the applications from the Android Market curtails, restrains, and interferes with the ability of subscribers to use the applications of their choice by making it more difficult to download and install those applications," the reform group warns.

Now a prominent professor of Internet architecture has written to the Commission, hastening to agree.

"Verizon Wireless's practice and Free Press's complaint raise fundamental issues of Internet openness policy," argues Barbara van Schewick, Associate Professor of Law and Engineering at Stanford University. "Free Press's complaint implicates not only the specific question of whether Verizon Wireless has violated the conditions associated with its spectrum licenses, but also the more general question of how to apply openness rules to mobile networks."

Van Schewick is the author of Internet Architecture and Innovation (MIT Press), and one of a group of scholars who complained to the FCC about Comcast's behavior in the 2008 BitTorrent case. Internet Architecture contends that the 'Net's design structure is changing in ways "that deviate from the Internet's original design principles," removing features that encouraged innovation during the founding days of cyberspace. The alterations "reduce the amount and quality of application innovation and limit users' ability to use the Internet as they see fit."

As in, for example, keeping inexpensive third-party tethering apps off the Google Android Market.

Application-agnostic discrimination

The complexity, of course, with defining the tethering app restriction problem as related to "fundamental issues of Internet openness policy" is that the FCC's open Internet rules exclude mobile wireless from its non-discrimination provisions (that's probably why the focus has been mostly on the C Block auction rules).

But Van Schewick's longer commentary to the Commission filed last year is worth a read, because at some point the FCC may have to deal with this tethering issue. Back in December, Van Schewick urged the FCC to adopt a non-discrimination rule that "clearly bans application-specific discrimination (i.e. discrimination based on application or class of application)" but would allow "application-agnostic discrimination."

Van Schewick explained the distinction as so:

Thus, a network provider would not be allowed to treat Vonage differently from Skype, or Comcast's Fancast differently from Hulu. That would be discrimination based on application. Nor would it be allowed to treat online video differently from e-mail. That would be discrimination based on class of application.

But:

It would be allowed to treat data packets differently based on criteria that have nothing to do with the application or class of application. For example, during times of congestion, a network provider could give one person a larger share of the available bandwidth than another, for example because this person pays more for Internet access or has used the Internet less over a certain period of time. But it could not throttle the bandwidth available to a specific online video application such as Hulu in particular, or online video in general. That would be application-specific discrimination.

The point of the rule would be to stop network providers from "distorting the playing field" between specific applications or classes of apps. At the same time, it would allow ISPs to use various network management tools to address congestion and other issues.

"Network providers would be able to enforce fairness among users, allocating bandwidth among users in application-agnostic ways, but how a user decides to use its 'share' of bandwidth, both in general and at a particular point in time would be decided by the user," van Schewick suggests.

Discrimination or blocking?

The FCC could conceivably deploy this concept on behalf of wired Internet users once it releases its net neutrality rules. But when it comes to third-party tethering apps, the question is whether such rules could be extended to wireless. The agency's order (PDF) makes the distinction between wired and wireless regulation clear (we've added the italics):

"Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic." "No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services."

Clearly the non-discrimination concept as outlined here wouldn't apply to downloadable third-party mobile tethering software. The next question is whether denying these apps a place on the Android Market could be construed as "blocking." They are, after all, in competition with ISP-offered pay-to-tether services; but is keeping them off the Market a "block"?

It's yet another conundrum for the FCC to tackle, if it wants—though a good chunk of its attention will likely be spent first defending the legal basis of its net neutrality rules in court.