Not so fast on net neutrality

Three months ago, FCC chairman Tom Wheeler seemed to be neatly threading the needle on net neutrality 2.0, laying out a path toward new rules that balanced the claims of proponents and critics of the regulation as well as those of the courts and Congress. When an outline of the new rules was leaked to the press last week, however, neutrality’s strongest supporters were not pleased.
Most of the cranial pyrotechnics concerned an apparent reversal by the commission on the question of paid-prioritization of bits. Under the new rules, ISPs will be able to discriminate among different types of traffic — treating some better than others — so long as they do so on “commercially reasonable terms.” That standard, critics claim, will allow ISPs to create internet  fast lanes for those willing and able to pay the toll to use them, relegating everyone else to the side roads.
There are at least two problems with that analysis. First, as Marguerite Reardon did a good job of explaining on Cnet (better frankly than chairman Wheeler managed to do) the FCC’s old net neutrality rules, which a federal appeals court has thrown out, did not actually prohibit fast lanes, either, so the new policy cannot really be considered a reversal:

[T]he issue as it pertains to the FCC and the Net neutrality debate is that the FCC has never actually said that such business models would be prohibited under any of its regulation. Some consumer advocates, blogs, and news outlets, which have accused the FCC of changing its position on this issue, have simply been confused about the FCC’s previous stance when it comes to how Internet traffic should be treated.
The reality is that the FCC has never supported the idea nor has it ever established rules that would prohibit any and all network discrimination. In fact, when the Open Internet rules were first established in 2010, there was great concern about the wording of the non-discrimination rule and some critics feared that broadband providers would establish so-called Internet fast lanes [snip]
“The Court of Appeals made it clear that the FCC could stop harmful conduct if it were found to not be ‘commercially reasonable,'” Wheeler said. And he went on to explain that “even Title II regulation (which many have sought and which remains a clear alternative) only bans ‘unjust and unreasonable discrimination.'”

Wheeler’s goal, in other words, is not to change the rule but to create a new enforcement standard that will pass the inevitable court scrutiny.
The other problem with the fast lane critique is why anyone would pay for one in the first place. ISPs have already made it abundantly clear that they’re willing and able to screw around with internet traffic — and force content providers to pay up in order to not get screwed — well before that traffic gets into the last-mile lanes, whether fast or slow.
Look no further than Netflix’s recent paid interconnection deal with Comcast. By Netflix’s own reckoning, the quality of its streams increased dramatically on Comcast’s last mile from the moment that deal was struck.


That deal was made under conditions of maximum net neutrality thanks to the terms imposed on Comcast by the FCC as a condition of the cable provider’s merger with NBC Universal. And yet Netflix still found itself paying up to ensure optimal throughput of its bits. The old last-mile non-discrimination standard was of no avail because that standard did not apply to middle-mile peering arrangements.
Nor will the new net neutrality rules (although Netflix is doing its best to try to bring peering agreements under the net neutrality roof). So why would Netflix or anyone else pay for preferential treatment on the last mile when they could still be subject to a toll to get onto the last mile?
What the reaction to the FCC’s latest proposal really illustrates is just how abstract and malleable the concept of “net neutrality” has become, encompassing a wide range of network-related issues that are only partly related to each other. What the long-running saga of net neutrality at the FCC shows is just how difficult it is to reduce an abstraction to a set of concrete regulations.