Did Regulators Break the Internet or Did They Save It? Yes.

State of the Art

Did Regulators Break the Internet or Did They Save It? Yes.

May 16, 2014 5:04 pm   

Ten years from now, we’ll look back on this week as the moment federal regulators broke the Internet as we know it.

Or we will look back on it as just another time they managed to push through a fragile, hodgepodge compromise that kept the Internet just barely functioning fairly, at least until the next telecommunications giant initiates a court case that once again casts the future of the network in doubt.

In other words, whatever happens, it’s hard to see a really great outcome to the proposal on so-called network neutrality rules that the Federal Communications Commission moved to adopt this week.

Network neutrality is the most important sleep-inducing topic around. At its heart is a question that anyone who uses the Internet ought to care about: Will the future of the Internet resemble that of cable television, a service in which business deals between content companies and providers influence which content you see on your devices?

Or will it function more or less like the free-for-all place it’s always been, a communications network where the latest innovation (say, Netflix, Hulu, Snapchat or Vine) doesn’t need to cut a special deal with Comcast to garner a following?

Tom Wheeler, chairman of the F.C.C., has insisted that he is in favor of an “open Internet.” Reading some accounts of the proposal that Mr. Wheeler and the two other Democratic-appointed commissioners voted for this week, you could have easily come away with the impression that the F.C.C. backed something that would preserve the openness that has long been the hallmark of the Internet.

The commission’s own fact sheet says that the latest proposal prevents “practices that can threaten the open Internet,” and all three of the Democratic-appointed commissioners said they opposed a “two-tiered Internet.” (The two Republican-appointed commissioners voted against the proposal, saying that Congress, rather than the F.C.C., should determine the best way to police Internet openness.)

But like all regulatory actions, the F.C.C.’s actual proposal was quite a bit more legalistically opaque than Mr. Wheeler suggested. Worse than that, it was all over the place. Though it’s cloaked in the language of an “open Internet,” much of the proposal can be read as an effort to let every side think it will get something out of the new rules.

This is by design. The F.C.C.’s moves on network neutrality have been hemmed in by the courts and will be scrutinized by lobbyists and interest groups of every stripe. Most anything the F.C.C. does on the issue would blow it up even further, either by getting the Internet into an outrage or prompting a legal backlash by broadband providers.

In a way, then, the best tack for the F.C.C. is to adopt a proposal that makes the issue go away for now. Conveniently, that’s exactly what this measure does.

Rather than come anywhere close to preventing anything, the new proposal’s main goal is to ask the public to comment on the right course for regulating Internet openness.

Given the considerable technical and legal expertise necessary to even understand this issue, the F.C.C.’s request for public comment on network neutrality seems about as useful as the Interior Department asking for public feedback on the best way to manage the Hoover Dam.

Sure, people may have general preferences — faster Internet, cheaper water! — but it’s difficult to see how regulators will learn anything during the comment period that will allow them to better achieve those preferences.

Here’s another example of how the F.C.C. is trying to please all sides: The commission says that the proposal includes a clause that would prohibit “exclusive contracts that prioritize service to broadband affiliates.” This means that Comcast might be allowed to take money from Netflix to give that service a fast lane into your house. But if Comcast does so, it will also have to offer the same priority service to Netflix’s competitors, too.

This sounds reasonable, except for one problem. The F.C.C. characterizes this rule as a “rebuttable presumption,” which means that the proposal is “taken to be true unless someone comes forward to contest it and proves otherwise.”

In plain English, then, the F.C.C. will absolutely positively try to protect the Internet. Unless you have a problem with it. In which case, never mind!


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