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Do we have a trans-Atlantic net neutrality accord?

Both the new FCC chairman, Tom Wheeler and Neelie Kroes, the EU Information Commissioner, seem to be singing from a similar hymn sheet on net neutrality. Neelie’s position is well known to our readers/viewers. She talks herself up as a spirited supporter of net neutrality (her version) and promises that users will have assured access to content on “best effort” Internet. Then there’s the ‘but’. Here she is addressing the parliament back in June.

"First, we should allow innovation. The new services round the corner depend not just on content, but on high-quality connections. For example, if you've just bought a videoconferencing system, you'll probably also want an internet service that guarantees the right quality, end-to-end. If someone wants to pay extra for that, no EU rules should stand in their way; it's not my job to ban people from buying those services, nor to prevent people providing them. If you don't want to buy them that is also fine, and you should absolutely continue to benefit from the "best efforts internet".

Suddenly we’re not talking about access to all content for everyone. There is now some content or services which need special treatment and that you have to pay extra for.

And so it came to pass. The ability of ISP’s to sell better than best-effort treatment to upstream service and content providers was explicitly allowed for in the proposed legislation. Not many noticed since the volume knob on Kroes’ pro-neutrality patter had been turned up to 11.

Let’s forget for the moment that both video (Netflix, YouTube, catch-up TV etc) and an increasing proportion of International voice services have been running very nicely across IP (the Internet) for years at ‘good enough’ quality. They don’t seem to need any extra special treatment and where they do it’s quite within the ISP’s ability to groom the traffic to meet end-users quality requirements without going off and double-charging for it. In fact it’s arguable that the ‘quality required’ proposition itself is just nonsense (see -OTT is dead).

But the nagging worry is that, with such a dispensation in place, slowly but surely, as and when the telcos increase their grip on the broadband market and more network-demanding games and services are introduced, ‘best effort’ will turn into a dirt track and premium services will become yet more expensive.

All with the willing participation of the dominant high-end service providers who will come to see complex telco quality deals as an excellent way to raise the barrier to entry for competitors into ‘their’ markets. It doesn’t take long for a bright-eyed challenger like Netflix to turn into a hoary old incumbent intent on protecting the patch and pushing up the ARPU.

So Tom Wheeler, the new chairman at the FCC; how does he stand? As we reported a week or two ago, Wheeler immediately exhibited a strangely familar line in ‘open network’ talk.

“When asked the obvious yes/no question - are you pro Net neutrality? - he appeared to answer another question,” we wrote. “That’s always a worrying sign.”

“I am pro the ability of individuals to access an open network,” he said. So something is obviously going to be let in under the wire sooner or later when some sort of deal is finally struck - what could it be?

Odds on that Wheeler’s position involves the network remaining open in principle - so that any user can get at any content - but (as with the EU information commissioner Neelie Kroes’ neutrality plan for Europe) there will be premium services allowed and encouraged. So you will always be able to access the Internet for any content, but if you’re not on the right service there may be some content that won’t always work as well. Differentiated services, in other words.”

Sure enough, Wheeler has now opened up and laid out his version of a neutral Internet

According to Variety’s website, Wheeler was speaking at Ohio State University where he made the following answer to question from the audience.

“I am a firm believer in the market. I think we’re also going to see a two-sided market where Netflix might say, ‘Well, I’ll pay to make sure that my subscriber receives the best possible transmission of this movie.’ I think we want to let those kinds of things evolve, and we want to observe what happens from that and we want to make decisions accordingly. I go back to the fact that the marketplace is where these decisions ought to be made, and the functionality of a competitive marketplace dictates the degree of regulation.”

That of course is Wheeler’s long view. In the mean time he could find it difficult to get any purchase on the net neutrality issue at all as the D.C. Circuit Court of Appeals mulls the constitutionality of the net neutrality rules that his predecessor eventually managed to get into place. If the court strikes them down Wheeler will have to start from scratch with a different approach.

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