] ] The battle on Net Neutrality

A somewhat heated state of affairs that has been roiling the IT-business world for the past few weeks, especially in the U.S., at least for now, deserves your attention, especially if you enjoy video streaming – which, these days, applies to virtually every Internet user. The matter has to do with the so-called Internet Neutrality, or “Net Neutrality,” for short. The principle of Net Neutrality (NN), also referred to as “Open Internet,” is that all Internet traffic should be treated equally, independent of the type of data transported or whether or not the traffic is for the benefit of a consumer or a business. The principle would bar broadband providers or Internet service providers (ISPs) from blocking, degrading, or prioritizing Internet traffic from particular online sites or services. On the two sides of the NN battle, of course with the consumer sandwiched between them, are the content owners, such as Netflix, and the ISPs, such as Comcast, Verizon Communications, or AT&T.

For example, Netflix, the videostreaming company, wants regulations that will stop the fees that content companies currently pay ISPs to deliver their video and other data to consumers. After weeks of public outcry, Netflix tabled its concerns about Net Neutrality-weakening manoeuvres by ISPs to the (U.S.) Federal Communications Commission (FCC). Although Netflix has been paying such fees to Comcast and to Verizon to ensure smooth delivery of Netflix’s videos, the company’s stance is that such a practice weakens NN and should be rendered illegal by FCC.

Say you order video packets from Netflix, who, in turn, has to use a “shipping company” or ISP, to deliver the packet to you. Advocates of Net Neutrality are saying that all such digital packages should be delivered at the same (fast) speed, without requiring extra payments for premium delivery.

To appreciate Neflix’s concerns, consider the statement alluded to Ken Florance, a V.P. at Netflix: “In sum, Comcast is not charging Netflix for transit service. It is charging Netflix for access to its subscribers. Comcast also charges its subscribers for access to Internet content providers like Netflix. In this way, Comcast is double dipping by getting both its subscribers and Internet content providers to pay for access to each other.”

Let’s consult Troy Wolverton’s article in the 26 April 2014 issue of Siliconbeat, the techblog of Mercury News (San Francisco), for a brief history of the problem. According to Wolverton, “Support for net neutrality has been the formal policy of the FCC since the mid2000s, but that policy has been in a legal morass for years.” “After finding that Comcast had violated its Open Internet principles in 2007 by blocking legal file trading traffic, the FCC ordered the company to stop. But a federal appeals court overturned that order in 2010 saying that the FCC hadn’t shown that it had the regulatory authority to enforce Net Neutrality.” “In the wake of that ruling, the FCC went through a formal rule-making process to create its Open Internet rules, but in January of 2014, the same appeals court largely overturned those rules also. “The rules are tantamount to regulations that would govern common carriers,” the court said.

Although broadband providers look a lot like common carriers — and their telephone and telegraphy company predecessors were treated as such — the FCC had declared in the deregulatory fervor of the early 2000s that they weren’t actually common carriers. “If they aren’t common carriers, then the FCC can’t force them to obey common carrierlike rules,” the court said. In essence, the court is basically saying that noncommon carrier regulations would allow for such “commercially reasonable” discrimination.

In the past week, Netflix has been trying to zero in on an FCC plan to rewrite the Open Internet rules in a way that sets limits on how ISPs treat web traffic crossing their networks. Netflix and its fellow members of The Internet Association, which include Google, are urging the FCC to impose a lasting form of free interconnect and prevent broadband “gatekeepers” from deciding what websites run the fastest. However, it’s doubtful that they will get what they are asking for from FCC. Although FCC appears to support NN, the rules currently being drafted by FCC Chairman Tom Wheeler would soften the agency’s stance on pay-for-priority. The current proposal, like the old one that was rejected by a Washington DC court, would bar broadband providers from blocking or degrading legal (regular, consumer) Internet traffic. However, the FCC would allow some “commercially reasonable” deals where content companies can pay ISPs to give priority to their traffic and ensure its smooth delivery to users. That is, the rule would allow broadband providers to create fast and slow lanes for trafficking Internet contents, depending on whether or not content providers pay up. This is obviously anti-net neutrality.

If it is of any consolation to pro-net neutrality advocates, Wheeler promises that “all options for protecting and promoting an open Internet are on the table,” a statement that some interpret to mean the FCC is keeping open the option of reclassifying broadband providers as “common carriers,” which are companies that are legally required to treat all communications equally. That might make some sense. After all, Internet service provision has evolved from the AOL years when ISPs provided everything – browser, content, email, broadband, etc., to what we have today where the only service provided by most ISPs is broadband. That is, they are “common carriers!”

The bottom line in this article is that a fierce battle is taking place between content providers and Internet service providers regarding the creation of fast and slow Internet traffic lanes depending on what you pay. The FCC’s only option to uphold net neutrality seems to be the classification of ISPs as common carriers.