The Federal Communications Commission has extended the filing deadline for comments relating to its 'Notice of Proposed Rulemaking' on network neutrality, largely to allow responders to make comments in the wake of the D.C. Circuit's April 6, 2010 decision in' Comcast (News - Alert)Corp. v. FCC,' which ruled that the FCC has no legislative mandate to regulate broadband access services.

Parties now have an extension until April 26, 2010, to file reply comments.

Some observers likely will suggest other approaches the FCC (News - Alert)might take, such as circumventing the need for passage of brand-new legislation by Congress granting the FCC authority to regulate broadband services. FCC officials themselves have been arguing that the agency could simply reclassify broadband access a common carrier service, allowing the FCC to regulate access services using the jurisdiction it already has to regulate voice services.

The continuing problem is the extreme murkiness of 'neutrality' definitions, as well as the fact that what some 'neutrality' proponents want is not consumer protection from predatory business practices, but new rules that go beyond what the FCC already has codified in terms of ability to use a lawful application.

The complexity of the issue is not helped by the legitimate grey area between permissible network management techniques and future innovation in access services. All networks, and all IP networks, get congested at times. So all networks must be managed to preserve reasonable quality.

In the voice world, access literally is blocked when the networks are congested: callers cannot place a new call and get a message to the effect that 'all circuits are busy, please try your call again later.' ISPs do not propose to actually block access at times of peak congestion, but logic suggests one way to preserve overall quality of experience, when demand is highly asymmetrical, is to limit the amount of bandwidth any really-aggressive user has access to, during the period of congestion. That doesn't mean blocking, but might mean some apps might not be able to consume as much network capacity as they could.

Virtually all observers agree that there should be no anti-competitive blocking of legal applications. But traffic shaping, deep packet inspection and application priorities can help preserve quality of experience under load. And that is one element of the debate over whether new rules should be created.

There is no disagreement over the principle that people should be able to use any lawful application.

The other new element is whether ISPs or end users should be able to create and buy any new applications or services that allow them to enhance or preserve the quality of application experience, something routinely possible and practiced on private business networks.

Today all consumer applications are experienced on a 'best effort' basis. Business users often have access to services that will allocate priority to higher-value applications, when necessary. The new proposed 'neutrality' rules would likely make such distinctions illegal.

Though it is obvious why application providers would prefer to avoid paying for such prioritization features, it is equally obvious why access providers would like to be able to create premium levels of experience that guarantee, for example, that entertainment video or voice works as well as possible, by giving those applications higher priority for whatever bandwidth is available during times of congestion.

That is not different in principle from businesses spending their own money to buy services the give priority to inventory database inquiries from sales staffs in the field, in real time, compared to casual Web surfing or YouTube (News - Alert)videos, for example.

Currently, the FCC classifies ISPs as a Title I information services that are not subject to FCC rules governing Title II voice and common carrier obligations. Opponents of that approach might simply note that Title II did succeed in providing high-quality service, but at the cost of very-low rates of innovation and high prices. That should strike almost any reasonable observer as a terrible outcome for typically fast-moving IP innovation.

Also, at a time when the entire global communications business is undergoing a permanent and negative change in its basic business model, a reasonable observer might say it does not make much sense to bar the industry from creating new revenue models to replace the old voice revenues that are going away.

Since everyone agrees the new model has to be built on broadband services and applications, there is genuine worry that overly-aggressive regulation of broadband services will simply drive investors away from the business, ensuring that higher bandwidths, for example, do not materialize, since providers will not be able to raise the needed investment funds.

The existing four principles seem to be workable and embraced by the entire ISP industry. Also, the problem with strict rules about bit prioritization is that such rules inevitably interfere with measures network operators might need to take to preserve service quality under load. And load is not ever going to vanish, as a fundamental problem.

In 2005, the FCC voted for four network neutrality principles that prohibited broadband providers from (1.) blocking any of its users from sending or receiving the lawful content of the user's choice over the Internet; (2.) preventing any of its users from running the lawful applications or using the lawful services of the user's choice; (3.) preventing any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network; and (4.) depriving any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers.

With just two exceptions, all Internet service providers have been abiding by those principles. And Comcast, which just won its case on appeal, has been voluntarily refraining from the practices originally found troubling, namely slowing the use of BitTorrent (News - Alert)at times of peak network congestion.

Strict rules about bit prioritization can backfire in troubling ways. So the extra time to comment is a good thing. We will need to think very hard, and very long about all the ramifications of well-meaning and well-intended policies that actually could cause more harm than help.

Gary Kim (News - Alert) (News - Alert)is a contributing editor for TMCnet. To read more of Gary's articles, please visit his columnist page.

Edited by Patrick Barnard