By Woody Leonhard
The U.S. Federal Communications Commission has proposed a new set of rules that will change — some say kill — net neutrality.
With regulations coming soon, Congress hunkered down; and with a brawl breaking out on a dozen different fronts, here’s what you need to know about the FCC’s proposal and how it will affect you.
Perceptions of net neutrality differ
In the March 27 Top Story, I talked about how Netflix’s deal to hook directly into Comcast’s network didn’t violate net neutrality. I noted that co-locating Netflix servers in Comcast facilities simply bypassed intermediaries such as Cogent, Level 3, and other Content Delivery Network (CDN) companies. (CDNs typically act as a bridge between content providers such as Netflix and Internet service providers such as Comcast.)
The Netflix/Comcast deal might result in higher Netflix fees, but it doesn’t have any net-neutrality repercussions that I can see. However, other events and trends do have possible ramifications for net neutrality. Since I wrote that March 27 Top Story, the discussions about keeping the Internet on a level playing field have reached new highs and, unfortunately, new lows.
Discussing net neutrality is often difficult because it means very different things to different people — and to different multi-billion-dollar organizations. A SaveTheInternet YouTube video has a layman’s overview. Yes, it’s biased; but it includes humorous scenes from John Hodgman’s July 29, 2006, The Daily Show skit on the topic.
My definition of net neutrality is really quite simple and, I think, reflects the interests of most individuals and businesses that rely on the Internet. In his Feb. 27 Stratechery blog, Ben Thompson said it best: “Net neutrality means non-discrimination against packets from origin to destination. A packet from Netflix or YouTube or PornHub or the New York Times is treated and priced exactly the same from server to client and back again.”
As the blog notes, ISPs and content providers base their definitions of net neutrality mostly on their corporate interests.
Fallout from a questionable FCC decision
Years ago, the U.S. Congress gave the Federal Communications Commission (FCC) permission to regulate the Internet within the U.S. Back in 2002 — centuries on Internet time — FCC chairman Michael Powell decided to classify broadband to the home as an information service rather than a telecommunications service. That fateful — many say flawed — decision set up the net-neutrality fight we have today. The FCC’s rules for telecommunications services (or “common carriers”) are well established and quite extensive. On the other hand, the FCC’s rules for information services have always been squishy — and they’re getting only squishier.
In 2010, then–FCC chairman Julius Genachowski issued a new set of rules for broadband service providers. In an Ars Technica article, Matthew Lasar called it “net neutrality (lite).” Although the rules alienated many net-neutrality proponents, they specifically prevented ISPs from blocking content. But the rules also let ISPs “manage” networks and offer better service to certain kinds of packets.
Verizon sued, claiming that the FCC had overstepped its authority. (Ever think about what your Verizon bills — and fees to other service providers — subsidize?) This past January, the U.S. Court of Appeals for the District of Columbia Circuit agreed. As reported in a Jan. 14 New York Times Bits column:
“[The court ruled that] the FCC cannot subject companies that provide Internet service to the same type of regulation that the agency imposes on phone companies. It cited the FCC’s own decision in 2002 that Internet service was not a telecommunications service — like telephone or telegraph — but an information service, a classification that limits the FCC’s authority.
“[The FCC can regulate the Internet], just not in the manner that it sought to do so. The appeals court said telecommunications laws give the FCC broad power to make rules governing the treatment of Internet traffic by broadband providers, because Congress has directed the agency to promote innovation and the growth of the Internet.”
Translation: If the FCC wanted more regulation of ISPs, it should have classified them as — more regulated — telecommunications services. The ruling left the FCC with judicial directions clear as mud — and no firm directions from a well-greased Congress. (A March Politico column reported that “even before announcing its plans for Time Warner Cable, Comcast had donated to almost every member of Congress who has a hand in regulating it.”)
The court’s decision left current FCC chairman Tom Wheeler a whole lot of nothing to work with — and much speculation from everyone else, given Wheeler’s background. A former president of the National Cable Television Association, he’s spent decades working as a lobbyist for the cable and wireless industry. Few doubt his experience; many worry about his allegiances.
A proposal with few merits — and big liabilities
To replace the rules shot down in flames by the Appellate Court, Wheeler’s FCC is floating a new proposal, detailed in an April 29 Official FCC Blog post. The proposal is an opening salvo — a request for comments from interested parties (essentially everyone). In the post, Wheeler states:
“First, this is not a final decision by the Commission but rather a formal request for input on a proposal as well as a set of related questions. Second, as the Notice makes clear, all options for protecting and promoting an Open Internet are on the table.”
Many observers view Wheeler’s “fast track” proposal as cable-industry same-old, same-old — quite possibly the antithesis of net neutrality. But Wheeler does have a good point. Whatever rules the FCC promulgates will undoubtedly be taken to court (there goes some chunk of your Verizon fees again). The FCC has to find some sort of middle ground that will pass judicial muster and not paralyze the Internet indefinitely. (Whatever FCC rules eventually stick, the service providers will still make billions.)
Wheeler’s proposal, in broad terms, allows “fast lanes.” Any content provider willing to pay for preferential treatment gets shunted to the faster connections.
But if there are fast lanes for those who can afford it, there obviously must be slow lanes for everyone else. Can’t or won’t pony up the extra bucks? You’re relegated to a slower connection, possibly putting you at a distinct competitive disadvantage.
But how slow is slow? That’s the vexing question. Will it be equivalent to what we now have coming into our homes? Or will sites such as WindowsSecrets.com suddenly slow to a snail’s pace? Will the next Facebook-competitor wannabe get outbid by Facebook for speedy access?
It gets even more complex and confusing. If Netflix ups its prices to recoup the added cost of fast-lane access, the price of a broadband provider’s own services (movies and TV shows, for example) will look more attractive.
Unfortunately, Wheeler’s proposal has an Achille’s heel: the FCC will have to make judgment calls on whether any restrictions an ISP places on its fast and slow lanes are “commercially reasonable.” The FCC presumably would monitor all Internet service in the U.S. and rule on whether a specific broadband provider, in a specific instance, is using unreasonable restrictions to improve profits.
Wheeler’s current guidelines seem reasonable: “Something that harms consumers is not commercially reasonable. … Something that harms competition is not commercially reasonable. … Providing exclusive, prioritized service to an affiliate is not commercially reasonable. … Something that curbs the free exercise of speech and civic engagement is not commercially reasonable.”
But obviously, the devil is firmly in the details. Squishy guidelines like these should make us all feel queasy. To me, they sound like a feeding frenzy for corporate lawyers. The FCC will have to spend millions or billions playing judicial roulette.
Those opposed are looking for a better way
Unlike some, I don’t think of Wheeler as a cable-company shill leading a mostly blind and well-greased congress to an end that’s not in consumers’ best interests. That said, I don’t agree with his proposal — on almost any point.
In a May 2 Slate story, Marvin Ammori takes Wheeler to task:
“Let’s get one thing straight: [Wheeler] is not backing off his plan to hand the keys to the Internet over to the cable and phone industries. The chairman told the cable industry to ‘put away the party hats’ because he’s not actually going to kill network neutrality. But his proposal is the same plan offered by the largest cable and phone companies, which have tried to kill network neutrality for almost a decade.
“Since 2006, the phone and cable industries have proposed a world where they won’t ‘block’ any websites, but they will simply create a lane for all websites and then charge anyone who wants better service for a fast lane. They have fought a nondiscrimination rule for at least eight years, using tens of millions of dollars. The tolls for the fast lane may be tied to bandwidth or a company’s revenue.
“Finally, the cable and phone giants want this world to have no clear rules — just vague principles about what might be ‘commercially reasonable,’ which is an invitation for small companies to sue the giants if they’re unhappy. Since the cable and telephone companies have more FCC lawyers than most companies have employees, they will scare off most potential companies suing and then beat the rest in ‘FCC court.'”
In my opinion — and others’ — that description hits the nail squarely on its head. Senator Al Franken fired off a two-page memo (PDF) that also takes exception to the FCC’s proposal:
“Struggling to craft a ‘commercially reasonable’ standard misses the point: Pay-to-play arrangements are inherently discriminatory and anticompetitive, and therefore should be prohibited as a matter of public policy. They increase costs for consumers and give ISPs a disincentive to improve their broadband networks — undermining the FCC’s mission to protect the public interest and strengthen the nation’s broadband infrastructure.”
Though it’s still too early to predict the end of the Internet as we know it, plenty of individuals, consumer groups, and analysts are ready to run Wheeler out town on a rail. See, for example, the May 5 InfoWorld story, “Thanks to Tom Wheeler, the end of the open Internet is nigh.”
The time to discuss net neutrality is now
There’s a growing resistance to the FCC proposal, and that resistance will undoubtedly swell during the FCC’s official public-comment phase. Organizations such as the Electronic Frontier Foundation (EFF) are launching public-awareness campaigns. An EFF post puts it this way:
“The problem is that most people don’t know about this extremely opaque process, and so they don’t participate. Let’s change that. Stay tuned. We’ll let you know when it’s time to raise your voice and add your testimony during the FCC’s public comment window when the new proposed rules are announced.”
If you believe net neutrality is threatened, you can help others understand the facts. Talk to your friends, even if they don’t know a URL from a 404. This is a thorny, multifaceted issue with no simple solution. (For more, see the May 6 InfoWorld story, “Level 3 accuses Comcast, other ISPs of ‘deliberately harming’ broadband service.” There needs to be an open, public debate about what we want the Internet to be. And you can be sure that an enormous amount of money will be spent attempting to obfuscate that debate. Best to get the facts straight now, so you can speak out knowledgeably when the time comes.
If you want to follow this issue — or even participate in the fight for net neutrality — drop by the Save The Internet blog. It provides links to more information, a petition, and other ways you can help out.