Sprint's WiMax policy says it can enforce bandwidth limits

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Sprint Nextel has promised an "open Internet business model" without restrictions on services and customer choice on its new WiMax service, but its acceptable use policy says the company may limit bandwidth for some applications and protocols, including file sharing.

Sprint rolled out its Xohm WiMax service in Baltimore Monday, and the company plans to expand the service to Washington, D.C., and Chicago by the end of the year. In the Xohm news release, Sprint said its WiMax service's "open Internet business model transcends other carriers' wireless walled gardens that restrict services, choice and innovation."

However, Xohm's acceptable use and network management policy says: "To ensure a high-quality experience for its entire subscriber base, Xohm may use various tools and techniques designed to limit the bandwidth available for certain bandwidth intensive applications or protocols, such as file sharing."

Those terms of service suggest some restrictions on service and customer choice, said Free Press, an advocacy group that supports net neutrality rules for broadband providers.

When asked about the potential conflict between the news release and the policy, Xohm spokesman John Polivka sided with the news release. "We do not police the Internet or the content our customers access," Polivka said. "We are not targeting specific applications or services."

However, Sprint will engage in network management to fight traffic congestion, he added. "We want to make sure no one uses a disproportionate share of the network to the disadvantage of other customers," Polivka said.

Free Press officials said the differences between Sprint's public statements and the acceptable use policy are curious. “Our view is that consumers should take notice when a provider promises unfettered access to an open Internet on the one hand while simultaneously reserving the right to limit access to certain content and applications on the other," said Ben Scott, Free Press' policy director.

In 2005, the U.S. Federal Communications Commission passed a set of open Internet principles, saying broadband consumers are "entitled to run applications and services of their choice."

At the time, the FCC said the principles weren't enforceable, but in August, the commission ruled that broadband provider Comcast could not slow customer access to peer-to-peer file-sharing services as a way to address network congestion. The FCC said Comcast's network management techniques were "invasive."

It's unclear if the FCC could enforce a Comcast-type ruling on Sprint's WiMax service. An FCC spokesman didn't immediately return a message seeking comment on Sprint's network-management plans. However, some other wireless data services put several restrictions on customer use.

Verizon Wireless' terms of use for its EVDO (evolution-data optimized) data service restrict its use to Internet browsing, e-mail and intranet access. The terms prohibit customers from using EVDO for uploading or downloading movies, music or games, among other things. Earlier this year, Verizon agreed to adjust data caps on the so-called unlimited service after an investigation by the New York state attorney general that didn't lead to any charges.

Free Press isn't comparing Sprint's situation to Comcast's, but it wants Sprint to disclose to customers what network-management practices it will use, said Jen Howard, press director at Free Press. The advocacy group has no plans to complain about Sprint's terms of service to the FCC, she said.

Free Press is "troubled" by Sprint's terms of service, Scott added. "We hope that Sprint will quickly disclose exactly what tools and techniques it plans to use, and demonstrate why it is necessary to maintain a closed network when consumers demand an open Internet," he said.

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