Net Neutrality Rules
Is there anybody out there who opposes net neutrality?
Net neutrality, of course, is the principle that calls for the Internet to remain free and open -- with
no ''fast lanes'' that would allow some content providers to take priority over others. This week,
Washington was buzzing with talk about net neutrality, yet out-and-out critics were hard to find.
President Obama, of course, is in favor of net neutrality; indeed, he started this whole kerfuffle
when the White House released a short video on Monday in which the president called on the
Federal Communications Commission to ''implement the strongest possible rules to protect net
neutrality.'' Tom Wheeler, the former cable industry lobbyist who is now the chairman of the
F.C.C., also wants net neutrality.
So do the big Internet companies like Netflix and Google, the ones that might have to pay
Internet service providers, or I.S.P.s, to get on a fast lane if such a thing existed. (That's called
''paid prioritization.'') Net neutrality is favored by lots of small Internet companies -- the kind that
might not have the means to pay for prioritization -- and dozens of public interest groups, too.
When the F.C.C. asked for comments on net neutrality, it received an astonishing 3.7 million
replies, a vast majority urging the commission to embrace it.
Even some Internet service providers say they agree with the goals of net neutrality. After
President Obama's video was released, Comcast, the biggest of them all, said that it agreed with
almost everything the president called for.
Alas, the key word in the previous sentence is ''almost.'' In his video remarks, President Obama
was surprisingly specific about what he hoped Wheeler and the F.C.C. would do: apply Title II of
the 1996 Telecommunications Act to the I.S.P.s like Comcast, AT&T, Verizon and Time Warner
Cable. Title II would reclassify these companies as akin to public utilities -- like the old
telephone company -- and would regulate them as such.
Although the president insisted that many of the more onerous parts of Title II -- like price
regulation -- could be held in abeyance, the I.S.P.s dread the thought of being regulated under
Title II. They would prefer to be regulated under another part of the Telecommunications Act,
section 706, which calls for a lighter touch.
Then there is the question of what, exactly, net neutrality entails. Does it include only ''the last
mile'' -- that is, the relationship between the I.S.P. and the Internet user? Or does it also include
''interconnection'' -- the point at which a content company like Netflix joins the I.S.P.'s network
and begins its journey to the customer? Currently, Netflix pays a fee to four big I.S.P.s to gain
uncongested access to their networks. Not surprisingly, Netflix says that net neutrality means it
shouldn't have to pay this fee. Comcast and its I.S.P. brethren disagree.
One reason federal net neutrality rules have been so difficult to achieve is that in the past, when
the F.C.C. has tried to regulate the I.S.P.s without using a Title II designation, it has had its head
handed to it in the courts. The courts have essentially ruled that without that classification, the
F.C.C. lacks the authority to apply rules that would ensure net neutrality.
Thus it was that a few weeks ago, The Wall Street Journal published a story reporting that
Wheeler had a compromise idea: use Title II to regulate the back end -- the point where Netflix
accesses Comcast's network -- and use section 706 for the front end, where the consumer is. It is
generally assumed that the F.C.C. leaked Wheeler's ''hybrid'' idea as a trial balloon.
The balloon, however, was quickly burst. Net neutrality advocates didn't think it went far
enough, while the I.S.P.s thought it went too far. At which point, the president decided to weigh
in. Wheeler may or may not take the president's suggestion -- he doesn't have to, as the F.C.C. is
an independent agency -- but, at a minimum, new net neutrality rules, which the agency has been
trying to accomplish for a half-dozen years, will be delayed again. And whatever the F.C.C.
decides, there will surely be a new round of lawsuits. Sigh.
Net neutrality is demonstrably a good thing, and it needs to be enshrined in law, not just done in
good faith as it is now. The real problem is with the law itself: It was never meant to regulate
broadband. Title II is too blunt an instrument, while section 706 doesn't give the F.C.C. enough
authority. That's why the agency has seemed to be dancing on the head of a pin as it tries to come
up with net neutrality rules that will pass muster.
Of course, there is another way to accomplish net neutrality. Congress could pass a law that
allowed the F.C.C. to write net neutrality rules -- but went no further.
Yeah, right. Better keep dancing, Chairman Wheeler.
