FCC Tests The Waters On A 'Hybrid' Net Neutrality Solution That Almost Everyone Hates

from the trying-to-find-a-compromise-that-pisses-everyone-off dept

Gautham Nagesh at the Wall Street Journal (who was also the first to reveal many of the details of Tom Wheeler’s original net neutrality proposal) had a story last night confirming the buzz over the last few weeks that Wheeler is now exploring a new set of “hybrid” net neutrality rules that appear, on their face, to take parts of the plans that consumer groups want and parts of what the broadband players want… and comes out, in the end, with a plan that almost no one wants. There is something to the old saying that a good compromise leaves everyone a little unhappy, but it appears that the rules being contemplated right now might leave nearly everyone really unhappy. It’s not clear that’s a good result.

First, it’s important to note that the WSJ article only describes the plan in slightly vague generalities, and the specifics matter a lot in these situations. It’s tough to know exactly how good or how bad this is without those details, but there are some broad brush strokes of what the FCC is leaking now to see what sort of reaction there is.

The plan looks to be loosely based on a proposal Mozilla submitted back in May, in which the FCC sets up rules that sort of split the baby, by separating out the relationships directly between various internet providers, classifying that under Title II (common carrier rules), while leaving the last mile sections (the part delivered to you at your home or office) regulated under 706 as an “information service.” But then, it sets up very loose rules on top of that structure, that potentially have massive loopholes for the broadband players — and that’s where the specifics matter. The end result could be that the broadband players could still make deals for “differentiated services” to the end connection — which is what many fighting for net neutrality were most worried about. Here’s how the WSJ describes Wheeler’s current thinking:

The plan now under consideration would separate broadband into two distinct services: a retail one, in which consumers would pay broadband providers for Internet access; and a back-end one, in which broadband providers serve as the conduit for websites to distribute content. The FCC would then classify the back-end service as a common carrier, giving the agency the ability to police any deals between content companies and broadband providers.

But, yes, the plan would still allow for paid prioritization:

People familiar with the FCC?s thinking say the agency remains skeptical of a flat ban on paid prioritization, noting that even common carriers are allowed to charge for certain specialized services. Mr. Wheeler suggested in December that he would be open to some such arrangement. He has been careful since then to emphasize that the FCC won?t tolerate harmful discrimination, though hasn’t called for a flat ban.


The proposal would leave the door open for broadband providers to offer specialized services for, say, videogamers or online video providers, which require a particularly large amount of bandwidth. The proposal would also allow the commission to explore usage-based pricing at some point, in which consumers are charged based on how much data they use and companies are able to subsidize traffic to their websites or applications.

In an attempt to deal with the concerns of such paid prioritization, Wheeler’s plan apparently would put the burden on the telcos to have to “prove that the arrangements would be beneficial to consumers and equally available to any company that would like to participate.”

If this is the actual plan, it’s definitely better than Wheeler’s original May plan, which would have allowed such prioritization if it were “commercially reasonable.” Having a combination of it being “beneficial to consumers” and with a non-discrimination component is a clear step up.

But — and here’s the important bit — it’s unclear what benefit this hybrid proposal really buys. Anything that touches on declaring any part of the network Title II is going to lead to lawsuits from the broadband players, as Verizon made clear just yesterday. In fact, it potentially gives them another legal argument in saying that not only is using Title II improper, but so is the attempt to slice and dice what parts of the network get Title II.

And, the consumer advocate groups may (in a funny way) be with them on that argument. In a statement Free Press put out in response to the WSJ article, they also declare the splitting the baby solution to be legally dubious:

The FCC is supposed to protect our communications, period. Chairman Wheeler can’t wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it. Such an untested, too-clever-by-half approach is bad law and a bad idea. It will not survive in court, and it is clearly inferior to reclassifying broadband under Title II of the Communications Act.

It’s also unlikely to buy Wheeler any political support from Congress. The anti-net neutrality crowd in Congress which has been so revved up to be against anything that even hints at Title II will immediately condemn this plan, and supporters from the other side will find it equally distasteful in allowing the broadband guys to mess around with the last mile connections.

Still, the end result here seems like a plan that may be noticeably better that the original proposal, but which angers almost everyone, and possibly kicks off a more aggressive set of legal challenges that may be more complicated (and potentially even less likely to survive a legal challenge). While I recognize and appreciate the goal of trying to find a “compromise,” it seems that coming up with one that is even less likely to survive a legal challenge is a risky proposition, because it means in another three to five years, we’ll be right back here again after a court tosses out these rules and a different FCC has to try again.

This definitely is a shift towards stronger rules, but the devil is in the details, and many people seem to be wondering, if the FCC is willing to go part way towards Title II and strong net neutrality rules, why not go all the way. The political opposition will likely be the same, as will the legal challenges. A compromise solution always sounds nice, but it’s not entirely clear what this buys in the long run. And, if this plan (again, details matter) still leaves a way for big broadband players to pick winners and losers, that’s a problem. And, again, that’s what this all comes down to. When the big broadband players get to act as gatekeepers who can set up tollbooths for internet services, there’s a real risk of massive chilling effects and a worse overall internet experience.

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Comments on “FCC Tests The Waters On A 'Hybrid' Net Neutrality Solution That Almost Everyone Hates”

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Anonymous Coward says:

Re: Re:

Politicians are in the business of setting things up to fail so they can get you to agree to more regulation.

It’s the same mentality as “if your tool is a hammer, then every problem looks like a nail”
The same mentality that says “doing something is better than nothing”
The same mentality that says “you don’t know how to do it right without nanny government telling you how to do it.

and don’t forget to think of the kids!

If the problem is not big enough yet, wait… they will make sure it gets big enough to make excuses on why they need to cut in.

Ninja (profile) says:

I don’t see why any compromise has to be achieved here. We have two main options being considered (706 and Title II) and none of them would harm the ISPs (in fact Title II even allows direct incentives to help building infra-structure that would otherwise not be a financially attractive option). The majority of the people and the tech sector has positioned in favor of Title II with use of some forbearance and the ISPs themselves have proven they’ll go to great lengths to milk money from everyone and anyone (even their grandmas if they could). So why the heck present some deformed, teratogenic alternative now?

The fastest path to failure is trying to please everybody.

CrushU (profile) says:

It looks to me like they’re trying too hard to make sure they don’t accidentally prevent providers from giving different speeds available for different prices. Like we currently have now, paying more/month for a faster connection (which is fine). But they need to craft it so that it is impossible to pay more/month to degrade others’ connections (which isn’t fine).

The problem comes with the technicalities of how (cable) broadband connections work… They use an algorithm to split up the max bandwidth among those who are subscribed, with each person getting a piece of the bandwidth, according to how much they’re paying. And it’s those final six words that give people fits…

I suspect we may find some inspiration from the banking system, as the algorithm used in connections is used in banking. (A bank doesn’t have ALL of the money deposited in it, in cash form, at ALL times. Similarly, an ISP doesn’t have ALL of the bandwidth being purchased from it available at ALL times.) With a bank, I’m not sure, but my guess is the FDIC insures them in case everyone decides they want their cash money NOW. We might need something similar in case everyone on an ISP decides they want to use ALL of their purchased bandwidth at the same time.

But yeah, they have to be careful writing those rules, because ‘cannot degrade someone else’s connection’ is actually happening now, and is a legit reason for a slowdown: The infrastructure simply doesn’t support it. (I’m not saying this is the only reason for slow connections, just that this is a legitimate reason that could accidentally become against the rules.)

Zonker says:

Re: Re:

This is not a legitimate reason at all. ISPs selling bandwidth they don’t have for all customers is fraudulent. Overselling your services is very bad practice which outside of a monopoly would result in lost business as subscribers would leave for better service elsewhere, but when cable companies pass laws banning competition from municipal networks there is no such choice.

I pay for 50 Mbps service. I expect 50 Mbps service, not a steadily decreasing percentage of available bandwidth after 10 of my neighbors get their share of a 200 Mbps connection. There should be 500 Mbps available to provide 50 Mbps per neighbor or I should be charged less for the 20 Mbps connection I actually get when the cable is at full use.

Overselling bandwidth only works when few people use the service they paid for. Why would anyone pay for a service they don’t use?

DigDug says:

Congress had better pay attention to their true bosses...

Hey, Congress Critters – your constituents, you know, your bosses, want True Net Neutrality.

Only the corrupting corporate thugs do not want Net Neutrality.

While they may offer more money, we determine whether or not you have your job, or get recalled due to “performance” issues, so don’t fuck this up, like you’ve fucked up everything else.

Corporations ARE NOT people.
Money is NOT speech.

Remember who your bosses are.
Remember who you have to answer to.
Remember who controls your future.

You in the Federal government are only 400ish people, we are millions – you think you’re in charge???? Think again!!

Eldakka (profile) says:

Re: Congress had better pay attention to their true bosses...

Under the law corporations ARE people. It’s one of those legal fictions that are made up to allow corporations to do things that legislation says only ‘people’ can do, i.e. sue or be sued.

To explicitly exclude a corporation from being covered by a law, the phrase “natural person” is used as opposed to just “person”.

Anonymous Coward says:

Re: A quote from Calvin and Hobbes

This isn’t even a compromise, though. This is just everything the major ISPs want under the guise of a compromise.

Wheeler should be doing the following as a matter of course:

1) Revoke the licenses to trade of each of the major ISPs currently under lawsuit for ‘overbilling’ (aka ‘THEFT’);
2) Enforce Title II responsibilities on the ISPs;
3) Ensure that last-mile unbundling is the norm, rather than the exception, to promote competition;
4) Force neutrality of data transmission on Backbone providers (pake some money from peering agreements, sure; but don’t make it that companies can be held to ransom by the major ISPs).

Anonymous Coward says:

How can the internet be classified as both ‘telecommunication service’ and ‘information service’ at the same time? Is the routers at Verizon, AT&T and Comcast magic? Does the ‘telecommunication’ data from Level3 get feed into a port on Verizon’s router, and come out a last-mile port on the other side as ‘information’ data? Ridiculous!

Alvin Ernest says:

Finally the FCC is taking a pragmatic view! I disagree that it is a compromise, CDNs already address the “wholesale” section promising that their services improves the consumers “Quality of Experience”! Clearly a CDN overlay of the wholesale section means that there is already “paid prioritisation”! The key to this new FCC proposal is to ensure the “retail” section remains “Net Neutrality” compliant! This means no “Deep Packet Inspections” at the last network router, content is simply passed on to the consumer “last mile” as they arrive. Let’s get real, this would be a very good outcome!
To date CDNs deliver very few inter-connection points to ISPs, which means that they rely on “net neutrality” in the “wholesale” section to commercialise their services. Clearly, their business model is based on getting a “free ride” at some point in the delivery chain. The said ruling will change this, and as true cost becomes visible, we will see new competition emerging across the “wholesale” section! This begs the question, will RF business re-emerge to play a new role?

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