• by Wendy Davis , Staff Writer @wendyndavis, January 29, 2009

Cox Communications' new traffic-shaping plan is roiling many net neutrality advocates, who say the company has no business deciding which types of Web traffic to prioritize.

But whether the plan is actually unlawful appears open to debate. Clearly Cox intends to discriminate against certain types of protocols. The company said Tuesday that it will manage congestion by speeding some traffic -- visits to Web sites, email and chat, for instance -- while slowing down others, including peer-to-peer protocols and FTP transfers.

Discriminating between protocols might in and of itself violate a 2005 Federal Communications Commission policy stating that consumers should be able to access any legal content. At least, when the FCC sanctioned Comcast for impeding peer-to-peer traffic, the agency said that Comcast's arbitrary and secret blocking of traffic had the effect of violating the 2005 policy.

Cox's new policy isn't secretive, but it certainly seems arbitrary. It's also internally inconsistent, given that streaming video is given preferential treatment to peer-to-peer traffic, but sites that stream video sometimes use peer-to-peer technology to do so.

In a related matter, Comcast recently came under fire from the FCC for saying that it might occasionally delay Voice over IP service of competitors, but not its own digital telephone program. The FCC has demanded that Comcast explain why it appears to be favoring itself at the expense of competitors.

Meanwhile, the House just passed a stimulus program that includes net neutrality provisions. The bill says that companies receiving grant money to build new broadband networks must adhere to open Internet requirements. But given the recent controversies surrounding Cox and Comcast, it's clear that net neutrality means different things to different people. Until there's a clear governmental definition of neutrality, ISPs like Cox and Comcast will continue to take matters into their own hands, throttling traffic based on their own ideas about what's acceptable.