FCC's Wheeler talks about protecting the Internet's "open pathway"

Ian Scales
By Ian Scales

May 2, 2014



As predicted, having stimulated an ‘outcry’ by leaking a potted version of what he proposes to do about net neutrality, FCC chief, Tom Wheeler, is now on the offensive explaining why his net neutrality-busting proposals are hedged with protections that will make the Internet safe in his hands.

But if that were the case the proposals obviously aren't going to tip the power balance on the Internet towards telcos in any meaningful way either (this, after all, is what this is all about). So it then raises the obvious question:  Why not just re-regulate internet access as common carriage and be done with it?

Why?  Because that would involve a huge fight in Congress and through the courts. Wheeler thinks he can get away with offering the US ISPs a long game where, over time, the original principles of non-discrimination become lost in the gun-smoke as the ISPs/big carriers push and lobby their way, step-by-step towards the environment they long for. 

Which is? Not surprisingly it will look a bit more like the cable industry Wheeler came from, less like the Internet he’s come to. Remember Wheeler’s “two-sided business model” talk when he first came to office?. That wasn't just him thinking out loud. That was the curtain rising.

This week at the annual meeting of the National Cable and Telecommunications Association (that’s the lobbying group he once led as president and CEO) Wheeler stoutly declared that reports that he was  “gutting” the Internet were completely wrong. His intention was to do the opposite and protect Internet neutrality, but to do that he had to craft rules that would withstand legal challenge. 

You’ll remember that an appeals court struck down the original Open Internet order on the grounds that the FCC hadn't granted itself the power to impose those regulations, since it had classified the Internet as an information service, rather than as a common carrier.

The original rules forbade blocking traffic and discriminating against services. And they forced ISPs to be transparent about their network management procedures.

Now Wheeler thinks the best course of action is to avoid detailed proscriptions and fighting and instead urge ISPs to pretty-much follow the principles laid down in the Open Internet rules on the understanding that if they didn't he’d look to impose regulation and perhaps even reclassify them as common carriers (though it’s difficult to see that getting past Congress).

Essentially he says he’ll carry a big stick and hope not to use it.

In his blog Wheeler wrote: “The Internet will remain like it is today, an open pathway. If a broadband provider (ISP) acts in a manner that keeps users from effectively taking advantage of that pathway then it should be a violation of the Open Internet rules.”

The good old quid pro quo for this promise of good behaviour is that ISPs will now be allowed to strike special deals for enhanced connectivity with content providers, as long as the ISP charges were “commercially reasonable”.  These deals would always be subject to review on a case by case basis to ensure they didn’t take from Peter and give to Paul -  provide performance enhancement for one group by applying degradation to another. 

Crucial question:  what’s “commercially unreasonable”?

Wheeler offered a couple of examples. Actually degrading services to create a new “fast lane”; and degrading overall service so that users are forced up to higher-priced tiers.

“If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it,” he said.

But critics say this is playing with words. It’s simply absurd, they say, to offer the option of a fast lane for ISPs to sell to content providers and then promise to police it as a palliative.  Best to simply not offer it them in the first place.

They point out that at a competitive (rather than at a strictly technical) level, fast lanes can be seen as a zero-sum game - a throughput or speed improvement for one player - no matter how it is achieved - will often necessarily  disadvantage another. It’s all comparative.

Then there is technical change and elapsed time.  New services will appear with high network demands and new technologies will come to support them.  With precedents set by today’s ‘special arrangements’ the ISPs will lobby for broader definitions and new techniques and technologies to be paid for by content providers.  The fear is that  over time the ISP business model might start to look more and more like the cable one.

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