How Open Will the FCC's 'Open Internet' Really Be?
What's This?
2014-04-24 23:39:39 UTC
Everything about the FCC's latest Open Internet proposal sounds fair. The government agency that lost a court battle on its four-year-old Open Internet (or Net Neutrality) rules in January, simply wants to revive those rules, but in a way that will pass judicial muster.
In theory, the rules that promise you can get to the content you want and have a reasonable online experience won't get weaker and they won't get stronger.
As one FCC official put it, if consumers liked their way their Internet and technology surrounding it grew, expanded and innovated over the last four years (look at those speeds, look at that iPad and, oh, all those apps!), they'll love the newly proposed rules just as much.
But a more cynical interpretation sees the proposed rules as opening the door for deep-pocketed content providers to pay for faster speeds, while making leaving smaller content creators and less-than-favored websites in the dust. And that could be bad for everyone.
With all these new promises of the FCC as the Guardian of an Open Internet, come many, many questions. Even the FCC's favorite new term, "commercially reasonable," is wide open to interpretation.
Here's a look at what today's FCC statements mean for consumers, businesses, and the future or our online existence. We've tried to answer these questions from a "best case" and "worst case" perspective.
Is the FCC killing Net Neutrality?
"Net neutrality" in this case, means the FCC's Open Internet Order of 2010. The D.C. District Court ruled in January that those rules were not enforceable. The FCC's new proposal is its way of trying to restore the old statutes, but in a way that will have legal authority.
The old rules:
To "prohibit broadband Internet access service providers from favoring or disfavoring lawful content, applications or services accessed by their subscribers, but would allow broadband providers to engage in reasonable network management."
The new intent as stated by Chairman Tom Wheeler:
"The proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted."
So is Net Neutrality dead?
Optimistic Answer: By the FCC's measure, no. The language of the old rules aligns to a certain extent with the FCC's new intent. Moreover, for the first time in a decade, the FCC will have authority to impose the rules and regulations.
Pessimistic Answer: Net neutrality died in January. The FCC is just trying to have it both ways: Complying with the law that found its old order illegal, while still paying lip-service to the idea of an open Internet.
How Is the New Proposal Different From the 2010 Open Internet Order?
Although the FCC says its new proposal reinstates the concepts the Commission adopted in 2010, there are some differences.
As a refresher, the 2010 Open Internet Act stated that broadband providers must adhere to three rules:
Transparency: Broadband providers must disclose the network management practices, performance characteristics and terms and conditions of their broadband services
No Blocking: Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services.
No Unreasonable Discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic over a consumer's broadband Internet access service.
The D.C. Circuit Court struck down the no-blocking and no-unreasonable-discrimination statutes in January, but the FCC's new proposal intends to put those pieces back in, albeit in a way that remains consistent with the Court's opinion.
When it comes to content discrimination — whether providers can prioritize some types of traffic over others — there are subtle changes to the language.
The 2010 Open Internet Order called for "no unreasonable discrimination" and dictated that "fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic."
The new proposal says "ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity."
It's this area that has open Internet activists worried because "no unreasonable discrimination" and "no commercially unreasonable discrimination" can be interpreted in very different ways.
How would these new rules measure that behavior?
When it comes to content discrimination, the he FCC said it would look at what's known as "commercially reasonable" behavior. It was a term repeated over and over again by FCC Officials during Thursday's media call on the new proposal.
Yes, it does make it sound a bit like the concerns of those with "commercial" interests – media companies, advertisers, ISPs – might get more consideration that what would be considered reasonable for consumers (sorry, there is no such term as "consumercial interests").
How will the FCC measure "commercially reasonable" behavior?
While we do not have the actual proposal in our hands, FCC officials explained that it will look at very specific factors:
Is it anticompetitive practice?
Is it bad for consumers?
Does it infringe on free speech?
Is the company or entities engaged in good-faith practices?
Of these standards only two are precise enough to be relatively enforceable. We know what free speech is. Anticompetitive practices are pretty well-understood too.
Both could end up in judicial review, but at least they're stronger than explaining to a company what is and isn't bad for consumers and outsmarting a lawyer who can call virtually any corporate activity an act of "good faith."
Because this is going to be handled on a case-by-case basis, there aren't a strict set of standards. In other words, behavior that is deemed "commercially reasonable" in one instance might not be in another.
Optimistic Answer: Because the FCC can regulate broadband infrastructure deployment under Section 706 of the Telecommunications Act of 1996, it can ensure that arrangements that are bad for consumers or are anticompetitive won't happen.
Pessimistic Answer: Any lawyer could make the case that an action is "commercially reasonable." Moreover, it could be argued that even under Section 706, the FCC might not have the legal cover to prevent actions that hurt consumers.
How will the FCC know what to look at?
Optimistic Answer: FCC officials say they read blog posts and newspapers, so they'll see the activities of these commercial entities. They'll also accept formal and informal complaints.
Of course, in virtually all these cases the FCC will be acting after the horses have left the stable and are trotting around the Internet track. It's much harder to herd them back into place after the fact than it would be to have strict rules that simply say, "You can't do this on the Internet."
Pessimistic Answer: Only the most egregious violations will ever come under any review, and even then, it may take years before those disputes are resolved.
What does this mean for consumers?
As noted, the plan does seek to protect consumer Internet interest by looking at activity that might be deemed "bad for consumers."
The reality is that consumers have very little power or control in matters of Internet access and openness.
You can still pay whatever your ISP wants to charge for broadband Internet and hope access to all your favorite content will feel the same in the future as it does today. However, that experience is totally up to your ISP and its partners.
Optimistic Answer: Innovation will continue as it has before, and now the FCC will have legal authority to enforce these rules.
Pessimistic Answer: Content companies and ISPs are going to start bartering over access deals. Consumers will end up the losers.
What does it mean for ISP and content companies?
The proposed rules will hold all of their activities up to "commercially reasonable" scrutiny, whatever that means.
Without Net Neutrality or Open Internet rules in place, ISPs, backbone providers and content companies are pretty much free to do as they want.
So far, they haven't done much, at least anything that's visible or has caused any kind of huge public outcry. With one notable exception.
What about the Comcast deal with Netflix?
Comcast and Netflix recently made what's known as a peering deal to give Comcast customers better access to Netflix content.
Some said that this is what happens when you don't have Net Neutrality. The FCC, however said that peering was never part of its original 2010 rules, which mostly dealt with broadband providers, content and customers, not network-to-network agreements.
Even though the FCC has the opportunity to rewrite the rules on this front, they've chosen instead to leave out peering agreements, mostly because it would delay the reintroduction of Open Internet Rules.
Optimistic Answer: This isn't a sign of future changes. Having enforceable regulation matters more than addressing peering.
Pessimistic Answer: This just shows that the FCC is slow to react and reacting to the wrong things. Even with Net Neutrality, stuff like the Comcast/Netflix deal can take place and it sets a dangerous precedent for future services.
What about the mobile Internet?
The FCC has a set of separate and not entirely equal rules for mobile. Mobile does have to adhere to transparency rules and providers cannot block any services that compete directly with their own voice and video services. However, the FCCs "unreasonable discrimination" rules do not apply to mobile.
It is a shame that the new proposal does not more aggressively seek to create one set of rules for all Internet traffic, regardless of platform. Without this adjustment, the FCC is leaving a massive amount of Internet traffic, probably the fastest growing part, partially ungoverned.
Optimistic Answer: Having enforceable regulations for fixed Internet will pave the way for mobile discussions.
Pessimistic Answer: If you think fixed broadband is a mess, don't even start looking at the situation related to mobile broadband.
What does the FCC mean by "unreasonable discrimination"?
What's unreasonable will likely depend on who you are. And it will likely leave lawyers with enough wiggle room to argue their client ISPs were acting in a "reasonable manner" when they blocked this or that traffic stream.
As discussed above, the key question will be the substantive differences between "unreasonable discrimination" and "commercially unreasonable."
Can my ISP block certain web sites or content?
The FCC wants "no blocking" of lawful content to be the "rule of the land."
This is one area where the FCC has your back. As long as everyone agrees on what's "lawful content."
Optimistic Answer: Your ISP will respect your rights.
Pessimistic Answer: Your ISP's definition of "lawful" may not match what you think it is. And that means content you want to access could be blocked or slow to access.
What happens now?
The FCC commissioners review the plan and then there are hearings in which the public will have a say.
Should we trust the FCC?
Current FCC Chairman Tom Wheeler spent decades as a lobbyist for mobile service providers and cable companies. That means he understands how these companies work and what they most dearly want.
While it's unclear if he's designing these new Open Internet Rules to suit his former clients' needs, it should also be noted that he's not changing them much at all from the rules written by his predecessor Julius Genachowski. Genachowski helped create Fox Television and workedfor Senator Charles Schumer, but was never, it seems, a lobbyist for cable or communication companies.
Optimistic Answer: If Wheeler really wanted to do his old clients a solid, wouldn't he seek to rewrite the rules so they favored the ISPs and media and cell companies even more? Maybe, but the lack of change could also be seen by some as an act of corporate favoritism.
Pessimistic Answer: How can we trust an organization that won't fight for a truly open Internet?
When Will We Have Open Internet Rules?
If it's up to Chairman Wheeler, by the end of this year. However, considering all the open questions, interpretation issues and general public distrust, we may never see a governed Internet again.
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Topics: FCC, net neutrality, open internet
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