FCC’s new net neutrality proposal: What do we really know?
By Grant Gross
When the U.S. Federal Communications Commission announced its proposal to reinstate new net neutrality regulations that would allow broadband providers to engage in commercially reasonable traffic management, the agency set off a firestorm of protest from digital rights groups, Internet commentators and bloggers.
One problem, though: People freaking out about the proposal haven’t actually seen it yet.
FCC Chairman Tom Wheeler’s proposal is scheduled to be released to the public on May 15, when the commission plans to vote on the first step in a long process to reinstate net neutrality rules shot down by an appeals court in January.
A second problem with the controversy: A major criticism of the new proposal seems to be over what may be a fairly minor change in wording, from the FCC’s original 2010 net neutrality order. FCC officials say the new proposal would allow commercially reasonable traffic management—and, in limited cases, pay for traffic prioritization—while the old order prohibits “unreasonable” discrimination against legal network traffic.
While the new order appears to be a change in tone, from a prohibition against unreasonable traffic management to an approval of reasonable traffic management, FCC officials have insisted the change is not as big of a deal as critics have made it out to be. FCC officials insisted they’re trying to restore net neutrality rules after the court threw out the regulations.
“To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted,” Wheeler wrote in a blog post Thursday. Under the proposal “no legal content may be blocked, and … ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.”
The proposal will be a version of net neutrality rules—the question will be whether they’re a significantly weakened version and whether the change in degree will be acceptable to open Internet advocates and Web users. So far, the outcry has been strong, with scores of bloggers, advocacy groups and websites condemning the proposal before the text has been released.
Uproar began last week
The first criticisms of Wheeler’s proposal came shortly after the Wall Street Journal broke a story Wednesday saying the FCC proposal would allow broadband providers to charge Web businesses for access to their fastest service.
The 1,300-word story was short on details, with only one or two paragraphs describing the proposal, and most of the rest of the story focused on reactions and on the history of the net neutrality fight. Late Wednesday, the FCC provided a few more details, and on Thursday, FCC officials briefed reporters and largely disputed allegations that the agency had backflipped on net neutrality.
“Dividing traffic on the Internet into fast and slow lanes is exactly what the Federal Communications Commission would do with its proposed regulations,” the Times editorial board wrote. “[Wheeler] “is proposing that broadband providers—phone and cable companies—be allowed to charge fees for faster delivery of video and other data to consumers.”
The Motley Fool was even more breathless. “In a drastic reversal of position, the FCC will support the rights of ISPs to regulate the speeds with which consumers access different materials on the web, a huge boon for companies like Comcast, Time Warner Cable, and Verizon,” said the article on Fool.com. “The FCC’s rejection of Net neutrality will speed along the death of the Internet as we know it.”
Esquire.com said: Broadband providers will be able to “create tiered Internet packages that force consumers to pay more for the service they already have. ISPs will also be able to force companies and services—everything from Netflix to home automation companies like Nest to anything else that runs on the web—to pay speed tolls to ISPs in order to maintain the reliability of their website or service.”
Never mind the fact that broadband providers already sell tiered packages based on speed. And it’s unclear how the FCC will define what’s a commercially reasonable traffic management practice, but agency officials have said that they will not allow broadband providers to extract speed tolls from “anything” that runs on the Web.
In addition, critics of the new proposal launched a petition, calling for “nothing less than complete neutrality in our communication channels,” at the WhiteHouse.gov’s We the People site. More than 29,000 people had signed the petition as of Monday morning
“This is not a request, but a demand by the citizens of this nation,” the petition says. “No bandwidth modifications of information based on content or its source.”
A second petition, with more than 95,000 signatures, asks the FCC to reclassify broadband as a regulated common-carrier service, although the petition incorrectly asserts that the appeals court suggested the FCC do so.
From the court ruling: “We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers.”
So what do we really know about Wheeler’s proposal?
What will happen at the FCC meeting on May 15?
The FCC is scheduled to vote on a notice of proposed rulemaking, or NPRM, addressing the new net neutrality plan. In an NPRM, the commission releases a set of proposals and asks for public comment on them. It’s the first step in a long process for the FCC to pass new regulations.
Wheeler has said he wants to pass new net neutrality rules by the end of the year, which would be a speedy process by FCC standards. Wheeler wants to move quickly, he said, because there have been no net neutrality rules in place since the appeals court threw them out in January.
Why was a change necessary?
Wheeler and other FCC officials say they are following the guidance from the January ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which suggested that the FCC’s past prohibition of unreasonable network management was a blanket rule that looked too much like old, common-carrier telephone regulations.
Will broadband providers be allowed to charge Web services for faster speeds to end users?
The FCC will take a hard look at attempts to engage in pay-for-priority traffic schemes, officials have said. It’s unclear what that means, exactly. There are also a couple of caveats: The agency doesn’t plan to ban all pay-for-priority business models, because, in some cases, consumers may want some Web traffic to be a higher priority. A Web-based heart monitor was one example an FCC official gave.
The net neutrality rules also won’t cover traffic exchange arrangements, also called peering agreements, that are in wide use today, FCC officials have said. Peering agreements cover all types of traffic exchanges, but the definition of what’s a peering agreement and what’s a pay-for-priority deal gets a little fuzzy at the edges.
In January, Netflix, under protest, signed a traffic agreement with Comcast, the largest broadband provider in the U.S., but Netflix executives have called for stronger net neutrality rules that would eliminate the need for the company to pay broadband providers for faster speeds. Many critics have echoed Netflix’s concerns.
Are there other concerns about the FCC proposal?
There are, and one of the biggest remaining concerns is that the FCC proposes to handle complaints about unreasonable traffic management on a case-by-case basis. FCC officials again point to the appeals court decision as grounds for taking complaints one by one, but critics say that approach will leave customers and Web businesses confused about what’s allowed and what isn’t.
The definition of what’s commercially reasonable could also change over time. The FCC currently has a Democratic majority that’s sympathetic to net neutrality advocates, but a future Republican president could appoint a majority that’s more hostile to those regulations.
Updated the original post at 3:20 p.m. PT to include information about a second petition.