Everyone from giant Internet service providers to lone “Twilight” fan-fiction writers seems to love “net neutrality.” But few who genuflect toward the phrase can make real sense of the bureaucratic battle raging in and around the Federal Communications Commission and its frequently maligned chairman, Thomas Wheeler.
The FCC has the unenviable job of enforcing a simple principle — Internet users should have effective access to any and all Internet content — with old and complex law. By all appearances, Wheeler has been seeking to establish protections without over-regulating. In the process, he has managed to stir up opposition from seemingly every side, including from President Barack Obama, who appointed him.
Net neutrality purists want the FCC to “reclassify” Internet services under a law written to regulate telephone monopolies, which would give the agency wide powers over the industry. Their idea is for users to pay for the bandwidth they use and do whatever they want with it — obtaining any content without their Internet service providers discriminating among sources. Ideally, that’s how things should work.
Yet, for practical reasons, “fast lanes” have been built into the Internet’s architecture for years, giving priority in various ways to popular voice and video services, for example, on which delays are particularly noticeable. Big companies such as Netflix have established special relationships with large Internet service providers such as Comcast. Smaller players have had access to many of those same arrangements through third-party “transit network providers.” These arrangements have allowed Americans to access all sorts of popular, bandwidth-gobbling content.
The worry is increasingly powerful Internet service providers will violate the net neutrality principle, perhaps shutting out upstarts who can’t pay for access to users. The Electronic Frontier Foundation’s Kit Walsh suggests a big provider might slow or block access to a union’s website, say, or demand customers pay more to log onto Netflix, rather than its own, in-house video streaming service.
Wheeler appears determined to deter that sort of behavior, but he is considering ways of doing so without the full reclassification purists want. Not every rule that reclassification would bring makes sense to apply to Internet providers. If it went down the reclassification road, the agency would have to carefully dispense with superfluous requirements. The industry worries the FCC won’t get the balance right, Internet service providers won’t want to invest in highly regulated networks and there will be excessive uncertainty in the meantime.
One option Wheeler has been considering would reclassify the Internet’s “back end” — including those special relationships between Comcast and Netflix that have caused so much heartburn — and keep the business of wiring and delivering content into homes under a different regulatory authority that would still provide the FCC tools to combat traffic discrimination. Another idea is to reclassify, but with strong, formal constraints on what the FCC could do written into the deal.
Wheeler has taken a lot of flak, but he is right to seek a balance. The goal is to bar unreasonable behavior without discouraging investment in capital-intensive, ever-more-robust networks.