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When it comes to net neutrality, either the FCC thinks we’re idiots, or it just doesn’t care

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With its latest plan to twist the concept of network neutrality into something that appears to be the opposite of neutral, the Federal Communications Commission has revealed that it believes the public can’t understand the issues — or that it is so in thrall of the companies it regulates that it doesn’t care what ordinary people think.

The FCC’s plans for implementing network neutrality came to light Wednesday in a Wall Street Journal article. The plans took the hallmark of network neutrality — the notion that ISP shouldn’t discriminate between the traffic flowing over their networks — and turned it on its head. Under the proposed framework for so-called net neutrality, the FCC does away with the concept of non discrimination and instead offers up a new standard designed to prohibit “commercially unreasonable” practices.

Is this the pay-to-play internet model?

Tom Wheeler, pictured standing to the right of the president.
Tom Wheeler, pictured standing to the right of the president.

Most net neutrality advocates have understood the FCC’s decision to mean that the agency will allow ISPs to charge content companies for better traffic flow provided it isn’t “commercially unreasonable.”

It’s important to note that the FCC Chairman Tom Wheeler came out a few hours after the Journal article (and others) appeared to respond that the media has his policy plans “flat out wrong.” The statement, offered below, neglects to address the crucial aspect of his proposed change: the idea that there’s room for any commercial practices in delivering a customer’s network packets.

Here’s Wheeler’s statement:

“There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong. Tomorrow we will circulate to the Commission a new Open Internet proposal that will restore the concepts of net neutrality consistent with the court’s ruling in January. There is no ‘turnaround in policy.’ The same rules will apply to all Internet content. As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted.”

Whether or not you think this is a good idea, inserting any sort of commercial relationship into delivering last mile web content –outside of what the end-consumer pays the ISP — is not network neutrality. So let’s stop calling it that.

Turning a technical argument into a commercial one

The FCC should man up and say exactly what it is doing here: It is implementing a double-sided market for the internet that could allow businesses to enter into commercial relationships with ISPs — who do not operate in a competitive market in the U.S. — for faster delivery of their content. And because capacity on broadband networks is limited, the flip side is that companies that don’t pay will see their content delivered more slowly.

Many will see this as a battle between the Netflix’s of the world and the smaller video providers who might not be able to pay. But this is actually about differentiating between different classes of content. For example, if you are a streaming video provider, those faster speeds will probably affect the user experience. You’ll need to pay up, because your competitors certainly will and eventually the best effort access isn’t going to cut it — especially as traffic on networks increase.

Photo by Thinkstock/wx-bradwang
Photo by Thinkstock/wx-bradwang

However, if you are a backup company like Dropbox or Carbonite that can train users to send their files overnight, then you may not care about slower speeds. Because this is true: Not all web content is created equal. As we put more content online, many people knowledgeable about network infrastructure point out the ridiculousness of trying to build out an ever-expanding network that’s capable of handling Netflix traffic as if it were the same as a downloading software.

It’s like trying to build a highway that can handle Lamborghinis, Chevy Volts and bicycles all driving in the same lane. Instead, these network experts argue that we need to figure out how to divide the lanes of traffic while ensuring that all vehicles can travel on the road without discrimination. That’s actually a completely fair and legitimate debate to have, but I’m not sure that is the debate we’re going to be having if the FCC’s plans go through.

Where is the burden of proof in this standard?

That’s because instead of discussing the real challenges of managing the growing amount of traffic on the web that has different delivery requirements, the FCC is going to let the ISPs decide — not just how those lanes are divided, but also the rules that govern who can travel where and how much they should pay. It has said it will not allow blocking and that ISPs must be transparent, but this “commercially unreasonable” framework strikes me as putting the burden of proof on the consumer or injured party to complain to the FCC long after the horse has left the barn — or their packets have failed to reach the user.

I don’t think that’s the way this conversation should play out. The FCC and ISPs may argue that because the ISPs built the original roads (their underlying network infrastructure) that it is the ISP’s right to decide the rules of that road and how much people will pay to access it. But at some point since the FCC first declared that broadband was an information product and not subject to the common carrier rules at the heart of today’s network neutrality fight, broadband has become a utility for consumers and businesses.

The idea that we would let ISPs make decisions that could lead to ISPs setting commercial terms that would impose taxes on startups and existing companies all without ensuring any sort of lowered price for consumers or network upgrades from the ISPs, is ridiculous. Broadband networks are not a public utility, but they are the foundation for our economy.

And as such we owe it to all participants to have a real debate about how we’re going to deliver the exponential increase in network traffic over our private networks. That’s a debate that the FCC must referee, not after the damage has been done, but in advance. Instead of calling its efforts net neutrality when they clearly aren’t, it should be honest and point out that it thinks neutral networks won’t work given the technical demands we’re placing on the internet. Then we can have a conversation about if that’s the case, and then what we should do about it.

We can’t let ISPs operating in a duopoly just set the rules for us.

Absent competition, the proposed rules look like a way for ISPs to get more money, set rules that will affect the shape of what is developed on the internet, and do all of these things with no guarantees that consumers or the broadband economy get anything in return. I don’t find that reasonable at all.

60 Responses to “When it comes to net neutrality, either the FCC thinks we’re idiots, or it just doesn’t care”

  1. nubwaxer

    come on already and declare internet providers a public utility so instead of bitching about at&t and comcast we can just bitch at the government instead.

  2. Justin Collery

    This is simply wrong, wrong, wrong!

    If you, the consumer, want to use streaming services you pay more to your provider for more speed.

    If you, the business owner, want to get into the video streaming business, you pay for a big fat pipe to the Internet to deliver your content.

    Both sides of the transaction already pay.

    The result of this ‘regulation’ will be that you will get your advertised speed to, the cable companies TV service, and whom ever pays the bounty. Less choice, innovation and opportunity for disruptive startups.

    This is already happening on US networks not just for the likes of Netflix, but also for different classes of traffic, such as VPN’s. There is no technical reason for this, just arbitary decisions by your ISP.

    Net neutrality has been fundamental in facilitating new businesses and business models. Ending net neutrality in the US will end the internets ability to allow the little guy to take on and beat the incumbent when the little guy has a technical or business advantage. It will become harder for disruptive businesses to flourish.

  3. Bob Jacobson

    Tom Wheeler earned his Lobbyist Medal of Honor convincing Congress, the then-sitting FCC, and the cities that cable was a poor struggling service with limited resources that, if regulated, would not be able to compete with the AT&T telephone monopoly and the theaters to provide entertainment to the masses.

    How ridiculous that was. The cable industry at the time (1980s) was infested with mob characters and filthy with mob money, so much so that Wheeler in DC and his apparatchiks in state capitals could lavishly lobby members of Congress, state legislators, and city officials. Wheeler was instrumental in devising this “strategy.” The upshot: cable has never been regulated in any meaningful way and has become a duopoly industry that won’t be reined in, not by this Chairman.

    So, given Wheeler’s history, what does Obama do? He nominates the Wheeler, the fox, to oversee activity at the national telecom-policy henhouse, the FCC. During confirmation, Wheeler spins a tale of an “open Internet,” much like the one he told 30 years ago about “a community cable medium.” And of course, once confirmed, Wheeler betrayed openness.

    I have to believe Obama is complicit in this betrayal: Wheeler is too high-profile for his past and his typical modus operandi to escape notice. He wasn’t going to change his stripes now.

    Bob Jacobson, Ph.D.
    Principal Telecom Policy Consultant
    California Legislature, 1981-1989

    PS The state PUCs and regulatory commissions could play a countervailing role. The California CPUC and Legislature in the mid-80s succeeded in repelling the Reagan FCC when it came to California and tried to deconstruct our state’s economic and social foundation, the unitary telephone network. We won in the US Supreme Court. More states (including California, with the busiest and most telecom-dependent economy in the world per capita) should think about challenging the FCC, now that Wheeler’s shown his allegiance once more to the telecom industry and not its business or consumer customers — the 95% “rest of us.”

  4. DoodleyDoo

    High traffic sites take up the most amount of bandwidth, and thus cost ISPs the most to provide. Under the old net neutrality rules, they had been getting a free ride as costs were spread evenly among other, less popular sites. In effect, the big content providers had been receiving subsidies at the expense of their smaller competitors.

    Was that the “free and open” internet that proponents of net neutrality claim to want?

    To clarify, I’m not defending the next attempted power grab by the FCC but I am still happy about the demise of their last effort (Verizon v FCC).

    • Bob Jacobson

      No one got a free ride. Costs were proportional based on volume of carriage. Unless you can prove otherwise. I don’t believe you can. I believe this is more disinformation. I’m not surprised you’re glad that Net Neutrality got killed in Verizon v. FCC. Not one bit.

  5. Shmintelligent

    Hey, What are you all complaining about?? According to the Social Progress Index from Harvard’s Michael Porter, when it comes to Access to Information and Communications, the US ranks right at the top… after Iceland… and Norway… and Sweden… and Estonia… and Slovakia… and Jamaica… just 23 places off

  6. Stacey,

    Great post, as usual, but I’m left with the question, “what can I do?” Quite literally I’ve asked myself this question several times after reading your posts, periodically throughout Susan Crawford’s book, and notably after reading Nilay Patel’s summary of this issue. I still have a draft email venting my outrage to the FCC, left unsent. Without a coordinated effort, I don’t have a lot of faith that the concerns will be addressed.

    I think I’d like all broadband internet access to be treated like a public utility. My internet connection is as important as my electric, gas, water, or the public roads connecting my home office to my place of work. The fact that, despite living 90 minutes from the Nation’s capital, I have only one option for acceptable broadband internet is totally unacceptable. Why do I pay more for less than what folks in other countries get?

    Am I just ignorant to the (pro-consumer) coordination that is already going on? It seems like folks can petition the government to build a Death Star, but with it comes to ensuring choice for broadband, it can’t be done. I’d happily write/call, donate, and would vote on this issue too (and express the vote to friends/family).