Will the FCC be tempted by AT&T’s suggestion of internet ‘fast lanes’ run by users?

The FCC is caught between two controversial proposals as it struggles to write new rules for the internet. One proposal, which would allow paid “fast lanes” for certain websites, is wildly unpopular with the public while the other, which calls for treating internet providers like a public utility, is radioactive to powerful industry groups.

Faced with this no-win dilemma, a compromise would be most welcome for the beleaguered agency. And, as it happens, AT&T says it has just the thing in the form of “user driven” fast lanes that, in theory, could preserve the principles of an open internet without leading industry groups to throw a fit over regulations. But not everyone is convinced.

Fast lanes driven by users

AT&T suggests the solution to the FCC’s internet dilemma lies with “user driven prioritization” schemes for internet traffic that would “empower consumers.”

In plain English, this appears to mean that some websites could reach consumers via fast lanes — allowing their content to move at express speeds — but only if consumers have first designated those websites for such treatment. Alternately, it could be interpreted as a way to allow some types of applications, such as video or VOIP, to come in faster than others.

The telco giant first floated this idea in July, but it has also met with the FCC twice in the last month to talk it up further. One of these meetings resulted in a public letter, flagged by National Journal, that described a visit to the agency.

The letter’s appearance may simply be a nod to transparency, but it may also represent a trial balloon to gauge public reaction to the idea of “user-driven” fast lanes — and to see if that reaction is any different to the angry blowback the FCC received after proposing its own fast lane concept in May.

On its face, this alternate fast lane scheme could prove more palatable since it implies that it will be consumers, not the likes of Comcast, who will have final control of the switch. In practice, it might mean that parents could use these controls to prioritize email traffic over Netflix traffic in their house.

Meanwhile, a variation of “user-driven” priority lanes also enjoys qualified support from Barbara van Schewick, a Stanford law professor and intellectual heavyweight in the net neutrality debate. In an academic paper, she explained:

Under this approach, a network provider would not be allowed to treat Vonage differently from Skype, or Comcast’s XfinityTV.com differently from Hulu. That would be discrimination based on application. Nor would it be allowed to treat online video differently from e-mail, treat applications that use the BitTorrent protocol differently from applications that do not use this protocol, or treat latency-sensitive applications differently from latency-insensitive applications.

But is this also what AT&T envisions? It’s hard to say. According to a Gigaom Research analyst, the company’s plan would likely put the consumer in control at the end of the fast lanes, but also set off a behind-the-scenes scramble by content providers to construct such lanes in the first place.

AT&T itself hasn’t elaborated on how exactly its “user-driven prioritization” would work, though a source close to the company suggested that the plan would let the FCC uphold “open internet” principles without invoking the so-called Title II classification (for public utilities) that the industry opposes.

Solution or slippery slope?

It’s easy to see how a net neutrality solution based on user-driven fast lanes would appeal to FCC Chairman Tom Wheeler: if seems to offer a way to placate everyone by upholding open internet principles, while using a light regulatory touch. But is it too good to be true?

“These sort of compromises are always very attractive to policy makers if they can get them,” said Harold Feld of consumer advocacy group Public Knowledge. “Politically, could it provide enough cover for those who want this issue to go away? It might.”

In a phone interview, Feld suggested that AT&T has long been shrewd out at staking out what seems to be middle ground, and positioning itself as a reasonable voice on controversial issues. But he is skeptical that the company’s proposal differs significantly from the FCC’s initial fast lane proposal from May, and described them as “just fast lanes with an opt-in.”

Feld’s colleague, John Bergmayer, also cautioned that the AT&T plan appears to permit internet providers to control the switch at deeper points of the internet, and exert unfair leverage over companies like Netflix:

“AT&T and the public interest community have a very different idea of what constitutes “user-directed.”  In AT&T’s version, they would still charge edge providers—but then users would opt in the the new fast lane.  This still maintains the problematic features of a two-sided market.  Any user-directed prioritization should not include an exchange of value between the edge provider and the last-mile ISP.”

In other words, AT&T’s offer to help solve the FCC’s dilemma through “user-driven prioritization” may amount to an offer of political cover, but one that doesn’t include meaningful legal or technical assurances.

That doesn’t mean the FCC won’t reach for it all the same, however. Few in Washington think that the FCC Chair is willing to antagonize powerful interests by going the public utility route — leaving him with the hard task of deciding how to package the fast lane rules in the least unpopular way.