We're five days and counting from the Federal Communications Commission issuing new net neutrality rules. Nobody beyond insiders at the agency has seen the draft Order in question. But Senator Al Franken (D-MN) has a message for the Commission. If the Order exempts wireless broadband from any nondiscrimination provisions, it might be better to put the whole matter off.

"I am very worried that the draft Order does not do enough to preserve that openness," he wrote to FCC Chair Julius Genachowski. In fact, as presently written, it could do "more harm than doing nothing at all."

Entirely acceptable

Most media reports suggest that the rules the FCC is expected to release on December 21 do exempt mobile wireless from nondiscrimination provisions. Genachowski has acknowledged that as well. They'll also permit paid prioritization, according to The Washington Post.

What will that mean, Franken wonders, for the Verizon networked iPad? Will the company favor its own video service apps over Netflix?

Under the language of the draft Order as I understand it, it would be entirely acceptable for a mobile ISP to prioritize its own such such applications and either degrade competing applications, or, quite simply, block them outright. To use a hypothetical, under this framework, Verizon could initially allow iPad owners access to a streaming Netflix video application over their 3G or LTE network—but then block that same Netflix application the very day that V CAST, Verizon's mobile video on-demand service, becomes available and offers competing content. In fact, they could have blocked the Netflix application the day they thought of offering V CAST on iPad.

Beyond concerns about exempting wireless broadband and permitting paid priotization, Franken worries about reports that the Order will define broadband Internet access as a "consumer retail service, by wire or radio, that provides high-speed capability to transmit data to and receive data from all or substantially all Internet endpoints." This approach would be similar to the net neutrality draft that Representative Henry Waxman (D-CA) unsuccessfully tried to get through the House earlier this year.

The definition is "flawed," Franken insists. The "consumer retail service" provision could be spun to exclude business or enterprise broadband. The all-or-substantially-all language could "perversely, allow broadband Internet access service providers who block websites to remove themselves from coverage under the rule."

Bad signals

Bottom line: "absent significant changes to the draft Order as it has been described to me, adopting these rules as they are may actually send signals to industry endorsing any closing off of the Internet that is not specifically prohibited," Franken's letter warns.

Tough talk for the FCC. Ironically, the letter was made public just as the Senator voted for the Obama compromise tax package, which in Franken's own words, extends "the excessive Bush tax breaks for millionaires and billionaires" into 2012 and "will explode our deficit over the next two years without doing anything to help our economy."

But Franken adds, "the alternative is simply unacceptable... the only thing worse than a bad deal would be no deal at all. That's why I voted yes yesterday," his statement concludes.

Franken isn't the only politician giving the FCC static over this issue. Twenty-nine Senate Republicans have signed a letter protesting the impending net neutrality ruling. They come at the issue from a very different perspective, of course.

"This is an unjustified and unnecessary expansion of government control over private enterprise," their petition warns.