Does the FCC’s New Net Neutrality Plan Ignore Net Neutrality?
After an appeals court shot down the FCC’s latest attempt to create an Open Internet, aka Net Neutrality, FCC Chairman Tom Wheeler promised to rework a new plan which would work within the parameters of the court’s ruling. The appeals court agreed that the FCC had some regulatory authority over ISPs, but that the 2010 Open Internet rules imposed mandates that were not within their authority. The court agreed with Verizon’s assertion that they could carry content they deemed fit and manage their networks accordingly.
Having decided to not appeal the decision, Wheeler’s options were limited. In February he announced that they would be proposing new rules that would focus on transparency and making sure ISPs did not act in a discriminatory manner, such as speeding up or slowing down speeds for certain content providers. In light of Netflix’s recent deal with Comcast, many fear the chance to have true net neutrality is already lost.
Late last month, news broke that the FCC had drafted a proposal that would soon be voted on and put out for public comment. The details have not been published, but they have released the framework on which the rules will be based. The proposed rules would ensure transparency, no blocking of legal content and that ISPs do not act in a a commercially unreasonable manner.
The “no unreasonable discrimination” has raised the alarm of many. In particular, reports have surfaced that this will allow deals like the recent Netflix/Comcast one, a deal that even Netflix wishes they didn’t have to make. If allowed to continue, this would create fast and slow lanes of content delivery – creating the nightmare scenario that net neutrality advocates want to stop.
The uproar was so swift that Wheeler took to the official FCC blog to make several clarifications. He pointed out that these proposed rules were not a final decision and just a first step in the rule making process. He insists that what he is proposing is within the framework laid out in the appeals court ruling. It is best to work within that framework because, as he points out, “acting in a manner that ignores the Verizon court’s guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are Open Internet rules in place.”
In other words, the proposed rules are the best shot at getting net neutrality now.
He further clarified what he deemed as “commercially unreasonable” behavior as “something that harms consumers; harms competition; provides exclusive, prioritized service to an affiliate; or something that curbs the free exercise of speech and civic engagement.” His statement doesn’t address the claim that providers could pay to have more direct access to customers and points out that any sort of discriminatory behavior would not be allowed under the new rules. The idea of “fast lanes” is not the point. The purpose of the rules is to “ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.”
The rules are essentially only dealing with the delivery to consumers. The Internet is a complicated network of interconnected parts that work to transmit data efficiently. Content providers use numerous content delivery networks (CDNs) to get their content to their audience as quickly as possible. ISPs (Internet Service Providers) control the so-called “last mile” of the network – the one that reaches millions of customers. Content providers have numerous choices of CDNs, who they pay to deliver their content to the part of the network controlled by a company like Verizon or AT&T, for example.
While the CDNs pay to access the ISP’s network (there are various types of arrangements within the industry), the content providers do not pay the ISPs directly. The deal between Comcast and Netflix is a rare example of a content provider paying an ISP to connect directly to that last mile. Netflix usually goes through CDNs, but is building its own delivery network to bypass them.
He did note, however, that interconnectivity is something the Commission would welcome comments on, including what is and is not working for all involved.
He also put ISPs on notice about testing what would be “commercially reasonable,” saying that all the FCC’s regulatory authority was on the table, including reclassification of ISPs to public utilities. They will deal with any attempt to block innovators and content providers with the “full panoply of our authority.” In short, by following the court’s road map, they have a legal way to protect net neutrality and do so expeditiously.
The full details will be presented for public comment on May 15.