Interim Federal Communications Commission chair Michael Copps has just called for a fifth Internet non-discrimination principle that would be added to the existing four. He told a Friday morning breakfast audience at the National Cable and Telecommunications Association's Cable Show in Washington, DC that the time has (almost) come to beef up the FCC's Internet Policy Statement (PDF).

After his commentary, Copps told press that the agency should wait to act on this matter until its next permanent chair arrives—he most likely being White House nominee Julius Genachowski.

No messing around

What is this fifth principle? After reading various Coppsian manifestos over the last three years, the concept seems to boil down to a formal warning that if ISPs block, throttle, hobble, molest, unfairly prioritize, too deeply packet inspect, or otherwise selectively interfere with protocols or devices on the Internet, the Commission will go into clobbering mode pretty darned quick.

"If everyone knew the FCC was on the job," Copps darkly warned at an April 2008 Stanford University hearing on network management practices, "that we had forthrightly staked out our principles, that everyone knew we would deal with any and all complaints that came in, and that those who do discriminate will be punished, word would get out pretty fast that no one should be messing around with the openness of the 'Net."

It looks like the agency's temporary boss first floated this idea back in July of 2006 when he dissented from the FCC's approval of Comcast and Time-Warner's joint snarfdown of the remnants of Adelphia Communications.

"To keep our policies current, we need to go beyond the original four principles and commit industry and the FCC to a specific principle of enforceable non-discrimination," Copps declared at the time, "one that allows for reasonable network management but makes clear that broadband network providers will not be allowed to shackle the promise of the Internet in its adolescence."

Neutral manners

The FCC came up with its first four principles, ironically, after it had set up a relaxed regulatory regime for both cable and telephone company ISPs. In June 2005, the Supreme Court upheld the Commission's controversial Brand X decision, which classified cable Internet as an "information service"—letting cable ISPs off the hook for various common carrier requirements. Two months later, the FCC extended the same generosity to telcos.

At the same time, the agency declared that ISPs did have a duty to provide their services in a "neutral manner," and it issued its first four precepts:

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 encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network. To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.

The policy statement also asserted that the FCC has the authority to enforce these concepts based on the agency's "ancillary jurisdiction to regulate interstate and foreign communications." But Copps has never thought the four principles were enough. At Stanford he called for a "a clear, strong declaration that we will not tolerate unreasonable discrimination by network operators"—and added that it should apply to wireless services, too.

At the event, the Commissioner conceded that coming up with this fifth leg will not be easy. "These are evolving technologies and sometimes the line between reasonable network management and outright discrimination can be less than crystal clear," he added. "But that’s why we need a for-sure enforcement process, to sift through complaints, to make the judgment calls, and, over time, to compile some case law and precedent so things become clearer."

Copps invoked the fifth yet again when the FCC sanctioned Comcast for protocol throttling in August 2008. One wonders which Jane Austen novel the agency's senior Democrat was reading when he wrote his speech.

"A clearly-stated commitment of non-discrimination would make clear that the Commission is not having a one-night stand with net neutrality, but an affair of the heart and a commitment for life," he opined. "A fifth principle will provide the needed reminder to all—long after the details of this case become blurry history—that the Commission’s policy of network openness is ongoing and its remedies are always available."

Are these rules really rules?

But before, while, or after the FCC adds principle five to the present list of regulatory vows, it has to defend the previous four in federal court. Last we checked, Comcast is still suing the agency over its P2P Order. The company has yet to submit a detailed brief against the action in the DC Circuit Court of Appeals. But even before the Commission lowered the boom on the cable giant, Comcast veep David Cohen noted that when the FCC issued its Internet Policy Statement, then-Chair Kevin Martin issued a press comment stating that such texts "do not establish rules nor are they enforceable documents." That remark might show up more than once in the trial.

And when dissenting from the FCC's Order against Comcast, Commissioner Robert M. McDowell wondered out loud what legal authority these principles had when the agency never ran a Notice of Proposed Rulemaking before enacting them. "Nothing regulating Internet network governance has been codified in the Code of Federal Regulations," McDowell noted. "In short, we have no rules to enforce. This matter would have had a better chance on appeal if we had put the horse before the cart and conducted a rulemaking, issued rules, and then enforced them."

So it could be a spell before that fifth principle gets cast in cement. In the meantime, the first four might be in for some scrutiny, too.