The Federal Communications Commission (FCC) voted 3-2 Thursday to move forward with a set of proposed rules aimed at guaranteeing an open Internet, prohibiting high-speed Internet service providers from blocking or discriminating against legal content flowing through their pipes.
While the plan is meant to prevent data from being knowingly slowed by Internet providers, it would allow content providers to pay for a guaranteed fast lane of service. Some opponents of the plan argue that allowing some content to be sent along a fast lane would essentially discriminate against content not sent along that lane.
Three Democratic commissioners on the five-member panel, including the chairman, Tom Wheeler, voted in favor of opening the plan to public comment. The plan will be open for comment for four months, beginning immediately.
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The two Republicans who voted against the plan said it exceeded the agency’s legal authority, that there had been no evidence of actual harm or deviation from net neutrality principles, and that elected members of Congress should decide the issue, not regulatory appointees.
FCC staff members explained that the proposal would aim to enhance the transparency rule that requires Internet service providers to tell consumers how they manage their traffic, a regulation that was upheld by the court, and would set a “commercially reasonable” standard to judge conduct that is not covered by a blanket no-blocking rule.
The proposed rules would also include an enforcement mechanism and establish an ombudsman to help investigate complaints from the public and provide guidance about the commission’s processes.
“We are dedicated to protecting and preserving an open Internet,” Wheeler said immediately before the commission vote. “What we’re dealing with today is a proposal, not a final rule. We are asking for specific comment on different approaches to accomplish the same goal — an open Internet.”
But Wheeler said the proposed rules did not deal with the connection between an Internet service provider, which provides a connection to consumers, and the operators of backbone transport networks that connect various portions of the Internet’s central plumbing.
That essentially means that as long as an Internet service provider does not slow down the service that a consumer pays for, the provider can give faster service to a company that pays to get its content to consumers in an unimpeded manner.
As the meeting began and continued, four protesters stood at different times and began speaking in favor of a free and open Internet and saying the FCC was protecting corporate interests. Security officers removed them from the meeting.
After allowing a period for public comments and replies, the commission will try to draw up final rules that satisfy a majority of commissioners.
Wheeler has said he hopes to complete the final rules by the end of the year. Even if he meets that goal, the issue will probably be challenged in court. Any new rules that impose restrictions on Internet service providers are all but certain to attract legal challenges from broadband companies or public advocacy groups — or both.
The proposal would keep much of the framework of the commission’s 2010 Open Internet order. But it justifies the rules under a different section of the Communications Act, as was suggested by the federal appeals court that struck down the previous rules this year.
Most of the debate during the coming months is likely to focus on a couple of fundamental questions: Is high-speed Internet service similar to a utility company’s transporting water or electricity, and therefore subject to heavy regulation? Or is broadband service so integral to what makes the Internet thrive that regulation would destroy the incentive for companies to create new online technologies?
“The focus of this proposal,” Wheeler said recently, “is on maintaining a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment.
“Our goal,” he added, “is rules that will encourage broadband providers to continually upgrade service to all.”
Four basic parts
What is at issue in the debate over keeping the Internet open — sometimes referred to as net neutrality — is more easily understood in the context of the four basic parts that make up the Internet.
The easiest of those to comprehend is the end user, the consumer who sits at a computer while streaming video, filling out job applications, shopping or any one of dozens of other activities. Connecting that consumer to the Internet is a broadband provider, a company like Comcast, Verizon or Time Warner Cable, which provides the connection between the consumer and that undefined world known as cyberspace.
Out there in the ether are so-called edge providers, like Amazon, Google or Netflix, which provide content, services and applications for public consumption. And in between the edge provider and the broadband provider are backbone networks, a web of transport lines and other infrastructure that bring video, for example, from Netflix to a consumer’s screen.
Traditionally, net neutrality has referred to the relationship between the broadband provider and the consumer — known as the “last mile” connection. Net neutrality has meant that a broadband provider must provide a consumer with access to any legal content available online and without making one company’s content available faster than another’s.
The connection between the backbone network and the broadband provider has not traditionally been considered part of net neutrality. That connection is more like the relationship between a wholesaler and retailer.
Most of the time, content providers like YouTube use a backbone provider to ship data. But, just as Amazon builds warehouses close to population centers — to enable, say, same-day delivery of goods — sometimes the content provider wishes to make a direct connection with the broadband company, cutting out the backbone company.
That is what happened last month between Netflix and Comcast, when Netflix agreed to pay Comcast for a direct connection in order to keep its videos flowing smoothly and without delay to consumers, particularly during times when lots of traffic is flowing over the Internet. (Netflix made a similar deal with Verizon.)
Net neutrality purists, however, believe that deal violates the net neutrality principle of treating all traffic equally. Offering an established, deep-pocketed company with an unimpeded route to customers is like building an E-ZPass lane on a toll road.
Upstart companies might not be able to afford such a direct connection, and their content might face delays as it travels to consumers. Picture a burgeoning online video game company that is trying to provide real-time gaming but finds itself stuck in traffic, like an out-of-towner on the New Jersey Turnpike who does not have E-ZPass.
Still, Wheeler — and most broadband providers — have said that relationships between a backbone company and a broadband provider are not covered by net neutrality arrangements, because they are not last-mile connections. Some content providers, including Netflix, say they are, and a vocal segment of the public has agreed.
When the FCC has tried to impose regulations on broadband providers, those companies have sued, and a federal appeals court has twice told the commission that it erred when it tried to impose net neutrality rules.
The court did say, however, that the FCC has the authority to write “rules governing broadband providers’ treatment of Internet traffic,” with a caveat: It cannot treat broadband providers like a utility, with one blanket set of regulations applying to all circumstances.
The reason it cannot is because in 2002, the FCC said broadband Internet service is more than just a transmission service; the transport of data was integrated with the content. Therefore, broadband fell under a different part of the law, one that precludes utility-like regulation.
The FCC could reclassify broadband into the utility category. That would set off a huge fight with many lawmakers and broadband companies with vast resources.