The FCC made public its latest attempt at rulemaking to enforce net neutrality and the proposal depends on reasonable behavior by broadband internet service providers (ISP’s) in the management of internet traffic on their networks. The Open Internet non-discrimination rules adopted in 2010 were struck down by a federal appeals court based on the Verizon decision in January. The agency is trying to thread the needle by encouraging ISP investment in internet infrastructure and discouraging any type of content blocking. The proposal opens the door for business arrangements to open up traffic for large content providers. This so called “fast lane” worries those lobbying for a free and open internet.
On any given evening, about one-third of internet bandwidth is used for delivery of Netflix streaming content. Netflix recently entered into peering agreements with Comcast and Verizon to deliver content directly from their network to the large ISP’s. Consequently, most subscribers have found that Netflix fare streams faster than earlier when the content provider used middlemen to deliver content to the ISP’s. Comcast and Netflix have engaged in a public relations battle over the necessity for the peering agreement. Both contend that the other slowed Netflix traffic in order to force the issue. Netflix CEO Reed Hastings purports to be a tireless advocate for net neutrality, but his main concern really appears to be finding the cheapest traffic routing alternative. The FCC is taking the position that a giant content provider can be forced by the ISP’s to pay the freight for network upgrades necessary to accept the traffic load.
The new net neutrality rules proposal allows the ISP’s to engage in commercially reasonable network practices, which the FCC hopes to be enough to regulate market behavior. While forcing an agreement with Netflix to pay its fair share of costs for additional communications ports does appear reasonable, net neutrality advocates worry that the ISP’s will used this reasonable network management ability to choose internet winners and losers based on traffic speed. Netflix is big enough to protect itself. The concern is that other arrangements with large content providers may relegate everyone else to the internet slow lane. While the anti-blocking provisions of the new rules prohibit the ISP’s from actually cutting off traffic from content providers, the rules do not require any specific traffic speed for those not paying for peering privileges. By the time a new content provider could lodge a complaint with the FCC and have it resolved, even if the agency decided the ISP was acting unreasonably, the content provider could be out of business.
The proposed rules are now in the public comment phase after the 3-2 vote by commissioners to proceed ahead on Thursday. While large broadband ISP’s voice a positive net neutrality sentiment in their press releases, their legal actions will likely say otherwise. Assuming the proposed rules end up being adopted in their current form, one of the large ISP’s will probably challenge the FCC’s rulemaking authority once again and the agency’s characterization of a given action as unreasonable. The proposed rules only will work if the ISP’s actually do use reasonable behavior to make net neutrality a continued reality because the whole rule structure depends on it.
By William Costolo