Why Google and the FCC are bringing wireless back into the net neutrality fight

This week the Chairman of the FCC and Google both seemed to come out in favor of holding wireless internet to the same network neutrality standards we hold the wired internet. This has long been the goal of net neutrality advocates since back in 2010 when the FCC was writing the rules that would prevent last-mile broadband access providers from discriminating against traffic on their networks.

After Google caved on the wireless issue, in what looked to be a realization that its business interests were tied to Verizon and others thanks to the nascent Android operating system, the FCC backed off the effort to make sure wireless networks were held to the same standards. But the FCC and Google are apparently changing their minds.

In a speech before the CTIA Tuesday, FCC Chairman Tom Wheeler made a veiled threat to the wireless industry, saying:

[blockquote person=”” attribution=””]The Commission’s previous Open Internet rules distinguished between fixed and mobile, and our tentative conclusion in this new rulemaking suggested the Commission should maintain the same approach going forward. In this proceeding, however, we specifically recognized that there have been significant changes in the mobile marketplace since 2010. We sought comment about whether these changes should lead us to revise our treatment of mobile broadband services. The basic issue that is raised is whether the old assumptions upon which the 2010 rules were based match new realities.[/blockquote]

He didn’t come out and say the FCC was going to rethink how it views wireless in the net neutrality debate, but he certainly hinted that it was an option. And many in DC are heartened by Wheeler’s comments.

“Wheeler is really from the Ben Bernanke school of signaling before you do something crazy,” said Harold Feld, a lawyer with consumer advocacy group Public Knowledge. “He is signaling that he is looking to up the rules on net neutrality on wireless.”

Google apparently is too. Jon Brodkin over at Ars Technica noticed earlier this week that Google is apparently back on the table as supporting network neutrality for both wireless and wireline access. That’s a significant shift from its 2010 position, although Google didn’t mention it in its most recent net neutrality filing from June 13. However, several internet lobbying groups such as the Internet Association and several tech firms (including Google) back in May have also made statements about bringing wireless back into the network neutrality discussion.

So in light of Google’s apparent volte-face and the Chairman’s even more surprising almost-threat to the CTIA that the agency is looking at how network neutrality should play out on wireless networks, it’s worth looking at what has changed since 2010

More subs, more problems

When the 2010 debate over network neutrality was raging, less than 30 percent percent of Americans had a smartphone, and they were using them very differently than they are using them now. During 2010, people in the U.S consumed an average of 350 MB/mo of data per month compared to 2013, when shared data plans and more devices helped push data consumption to 1.2GB per month, according to Chetan Sharma, a wireless industry analyst.

Plus, as Sena Fitzmaurice, a spokeswoman for Comcast, pointed out, if more than 20 percent of visits to the internet are coming from mobile phones, a significant amount of eyeballs access the net via wireless networks, which means that any unfair deals would affect one in five attempts to get online. Comcast says it is in favor of both wireless and wireline network neutrality.

And then there are the people themselves, who are changing how politicians view the debate. Thanks to John Oliver’s rant, the average consumer is far more engaged in the network neutrality debate than they were in 2010, and has told the FCC and her Congressmen what she thinks.

Protesters hold a rally near the building before the FCC meeting on net neutrality proposals on May, 15, 2014 in Washington, DC. (Photo by Bill O'Leary/The Washington Post via Getty Images)

Protesters hold a rally near the building before the FCC meeting on net neutrality proposals on May, 15, 2014 in Washington, DC.
(Photo by Bill O’Leary/The Washington Post via Getty Images)

Promises, promises

Back in 2010 the carriers defended the need for wireless exceptions because wireless networks have far less capacity than wireline networks, and killing a carrier’s ability to make special deals to guarantee high quality services would stop the development of things like remote medical monitoring. Four years, later, carriers aren’t really offering new services, which has the FCC and others wondering why they made this exception. Plus, it appears that the FCC is even becoming skeptical of the congestion argument, as you can with with Wheeler’s request to Verizon to justify the changes to its unlimited data plan.

They killed Rdio! You bastards!

Well, ok, Rdio isn’t actually dead. But deals like the one T-Mobile recently signed to exempt the data used by customers accessing Spotify and Pandora streams from any data charges illustrate exactly what the FCC was trying to prevent when it built network neutrality rules.

In this case, consumers may benefit, but a service that’s smaller and not part of the deal certainly won’t. AT&T’s sponsored data plan is another example, where companies can pay to exempt their content from AT&T customer’s data usage. Om called it an example of carriers seeking to charge both consumers and content providers and thought it reprehensible. The FCC may also see it as a problem.

The carriers are eying mobile video

A favorite argument for people in favor of network neutrality is the success of Netflix. Since ISPs also offer paid TV services, they had every interest in discriminating against Netflix traffic, thus making it harder for a startup to compete. Now, as AT&T looks to acquire DirectTV and Verizon is consolidating a variety of online TV assets under the Redbox management, it’s possible that mobile providers will have their own TV services. Even Netflix is getting in on the mobile game, which means that the same battles that played out on wireline networks could soon play out against on wireless.

Title II and the long game

And finally there’s the quesiton of Title II, the idea that instead of imposing network neutrality using a plan that basically guarantees paid prioritization on the internet the agency reclassifies broadband as a transportation service. Title II has gained ground with consumers and tech companies in recent weeks, and it’s gone from the seemingly nuclear option to something that has really influenced the debate. The carriers might be so afraid of Title II they will be willing to back down on wireless net neutrality as a way to placate the FCC and public.

In short, our increasing reliance on mobile internet, the carrier’s fear of additional regulations and the FCC recognizing the harm that a bifurcated internet could cause, are all behind this resurgence of interest in making wireless networks just as neutral as wireline networks. Hopefully it won’t mean that both networks get paid prioritization.