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

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.