FCC Seeks Comments on Open Internet

The Federal Communications Commission has opened the door for public comments on how to regulate Internet service, the issue widely known as “net neutrality.”  Many public interest organizations are urging citizens, especially media makers, to contribute.

Internet service providers such as Verizon and Comcast can, both in theory and practice, favor some kinds of traffic over others for their own purposes.  Recently, for instance, Netflix gave up trying to make Comcast provide efficient service and agreed to pay for speedier service (at an intermediary point). Whoosh, suddenly Netflix traffic went into the fast lane.

Net neutrality has big implications for media makers and distributors of media.  Properly designed and enforced, it would protect innovation and the little guy.

The FCC agrees, in its Notice of Proposed Rulemaking: “The open Internet serves as a critical platform for speech and civic engagement…the ability of citizens and content providers to use this open platform to communicate with one another and express their views to a wide audience at very low costs drives further Internet use, consumer demand, and broadband investment and deployment.”

The question is how to do it. While the Notice celebrates net neutrality in principle, the FCC’s proposed approach is limited because it has chosen not to treat Internet providers as common carriers. Doing so, many believe, would bring out the ISPs’ heaviest lobbying guns, but according to many, including the public interest group Free Press, it might be the only way to get regulation that actually works.

In a comprehensive and accessible analysis, GigaOm’s Stacey Higginbotham identifies hot-button topics raised in the Notice, including whether mobile users also get net neutrality (they should), how users (or the FCC!) will know about their ISPs’ behavior, what standards constitute normal handling of data, how disputes get resolved (an ombudsman? hm), and even—it turns out after all the protestations about supporting net neutrality, whether it’s OK for a well-funded company to pay for a fast lane.

Higginbotham’s take:

The FCC is proposing that it should use the authority that it has under Section 706 of the 1996 Telecommunications Act to regulate net neutrality, which unfortunately leaves the rules open to the possibility of paid prioritization. While Chairman Wheeler said that these rules don’t allow paid prioritization and is vehemently against allowing any bifurcation of the internet, it’s also something that the agency can’t enforce if the ISPs offer a creative legal challenge to its no-blocking rules or the wording of the eventual net neutrality rules.

 This analysis also drives toward the logic that only recognizing Internet providers as common carriers would allow meaningful regulation. But that would also mean a major political fight, in which media makers would need to make their voices heard.