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Re-thinking Net Neutrality
I resisted immediate reactions to the FCC’s Notice of Proposed Rulemaking (“NPRM”) because there is enough hyperbole and misinformation on the issue already. But now that I have taken the time to digest the NPRM and reflect on it, I can calmly and dispassionately say THE FCC IS GOING TO DESTROY THE INTERNET AS WE KNOW IT!!!!
Seriously, based on what I read, the FCC fails to fully appreciate the dynamics of Internet peering and the arrangements between backbone operators, ISPs, and content providers. Instead they have this simplified view that resembles more the arrangements in the telephony world than the Internet. The FCC needs to understand that the Internet is a dynamic multi-party “ecosystem” not easily held hostage to bi-lateral dealings. If the FCC is going to proceed to enact policy based on faulty assumptions then indeed there is a risk that they are going to alter the development of the Internet in profound and unnecessary ways.
Beyond the conceptual, however, there are real practical problems with the NPRM. Two areas in particular are peculiar and should call into question the FCC’s goals. First the FCC appears to allow anyone but a facilities-based ISP to modify a consumer’s Internet experience. The FCC states that “our proposals should have broad application so that the protections we propose are widely enjoyed.” They therefore propose to define broadband Internet access services as “any communication service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.” As I read this, it only applies to facilities-based (wireline or wireless) ISPs. If the facilities-based ISPs are subject to these proposed rules, then I think the FCC is just encouraging device manufacturers (Apple, Microsoft, Nintendo, etc.) and application providers (Internet Explorer, Mozilla, Safari, etc.) to play a greater role in defining the Internet experience for consumers. Perhaps because there is greater consumer choice for devices and applications this is acceptable, but people should have no illusion that the net will be neutral under these proposed rules. Rather, the control over the consumer’s Internet experience will simply come to be dominated by device manufacturers and applications developers.
Second, the FCC seems to be preventing anyone but the facilities-based ISP from offering managed services or specialized services. Under its proposed non-discrimination rule, the FCC says it understands the term “nondiscriminatory” to mean that “…a broadband Internet access service provider may not charge a content, application or service provider for enhanced or prioritized access to the subscribers of the broadband Internet access service provider…” But as it considers the issue of managed or specialized services, the FCC proposes to allow facilities-based ISPs to develop these separate from the Internet. This results in a situation where only facilities-based ISPs can offer managed or specialized services because no one else can pay for the enhanced or prioritized access which would be necessary to support the managed or specialized service.
So were the FCC’s proposed rules to be adopted, network operators could not alter in any way the consumers’ Internet experience unless they charged a fee to the consumer for managed or specialized services. Device manufacturers and application developers would be able to modify the consumers’ Internet experience any way they wish, but could not offer any premium services that require quality of service guarantees. I am not sure I see how this “preserves a free and open Internet” as the title of the NPRM would have you believe. Instead I think it introduces a class system into the Internet. In “coach” class you could enjoy whatever Internet experience the device manufacturers and application developers offer. In “first class” you could enjoy “managed” or “specialized” services offered by the network operators that rely on quality of service management.
Maybe proponents and opponents of net neutrality chose the wrong side.
