SAN FRANCISCO, U.S. — Two years ago internet activists, backed by Google, were dismayed.

They wanted to stop telephone and cable companies from offering preferential delivery of internet traffic. But Congress rejected “network neutrality” legislation designed to make first-come, first-served the law. Still, the controversy forced network owners, led by AT&T, to accept similar rules imposed by the Federal Communications Commission (FCC). The issue faded.

With internet-friendly Barack Obama poised to enter the White House, more than 50 former adversaries recently put aside their differences over network neutrality to call for a national broadband strategy. The truce won’t last. The partisans are already sniping. But the conclave should remind Obama that all sides favor better broadband, even if they differ over network management rules.

Obama backed network neutrality during the campaign. He has asked internet supporters Susan Crawford and Kevin Werbach to run his FCC transition team. Meanwhile, in Congress, California Democratic Henry Waxman will give net activists a more receptive ear as chairman of the House Energy and Commerce Committee. Network neutrality supporter Senator Jay Rockefeller, a West Virginia Democrat, will probably lead the similar committee in the Senate.

AT&T and its network allies seem to have concluded that by joining the broadband call to action, they could win tax incentives for bowing to the inevitable on network neutrality. But the common ground is narrow and surrounded by pitfalls. Shortly after AT&T signed the broadband call to action, for instance, it announced 12,000 layoffs, which won’t please its fellow-signatory, the Communications Workers of America, nor help the Obama administration create jobs.

The technology driving the network neutrality debate is a technique called deep packet inspection. It enables network operators to see what type of traffic they are passing and allows them to slow down bandwidth-hogging applications, such as video, to speed up the delivery of other traffic. This practice is called traffic shaping, and it has emerged as the prime irritant in the current debate. When it was discovered that the cable giant, Comcast, was using traffic shaping to slow down video traffic downloaded over peer-to-peer networks, the FCC intervened to oppose the practice.

Comcast has asked the federal courts to overrule the FCC and let it continue traffic shaping. The case threatens to disrupt any chance of keeping network neutrality from becoming a congressional issue. Given their other priorities, lawmakers might prefer to let an Obama administration FCC enforce network neutrality on a case-by-case basis, even if internet partisans would prefer a new law. But if Comcast wins in court, that could force Congress to take up the issue. Senator Byron Dorgan, a North Dakota Democrat, has already talked about introducing new legislation favoring the internet side.

This is not just a U.S. issue. Canadian regulators recently approved traffic shaping in a decision that displeased internet partisans. But such practices seem less controversial in Europe, where influential regulator Viviane Reding endorses both network neutrality and “legitimate network management,” so long as operators don’t degrade service past some minimally acceptable level. The European approach seems to be that boosting the overall speed and ubiquity of broadband is the best way to minimize arguments over network management.

In the end, a policy to promote U.S. broadband is likely if for no other reason than the sense that the nation is falling behind Europe and Asia. But network neutrality may bedevil policy makers for some time to come due to the internet's continuing evolution. When net activists argued the issue in 2006, for instance, they were talking about wired networks. As Internet-enabled smart phones proliferate, some have argued that network neutrality should rule the wireless realm as well. Network operators would find that tough to swallow.

A recurring problem with the network neutrality debate in the U.S. has been a scarcity of information. The activist group Free Press has asked the FCC to gather devilish details about the state of U.S. broadband that the laissez faire President George W. Bush administration never sought to acquire. An Obama FCC might want to know how networks are managed and where bottlenecks exist as the prerequisite to intelligent enforcement.

Meanwhile, the truce that inspired Google and AT&T to support the broadband principles quickly broke down after a consultant with ties to the telecommunications industry issued a white paper suggesting that Google paid far less than it should have considering the load it puts on the internet. Google’s Capitol Hill lobbyist disputed the contention, but the tempest should remind anyone who may have forgotten that public policy generally emerges from a clash of interests rather than a meeting of minds. 

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