While the FCC's new net neutrality rules
are certainly a step in the right direction for consumers, it's aggressively premature to uncork the champagne. There are still ISP lawsuits waiting in the wings, not to mention the fact that a 2016 party shift (and subsequent FCC leadership change) could very quickly dismantle ten years of grassroots activism in the blink of an eye. And then there are the rules themselves and the FCC's dedication to them; as noted last week
, it's difficult to know just how useful the new Title II-based rules are going to be until we see precisely what the FCC defines as actionable behavior.
For example, while the rules prohibit blocking, throttling, anti-competitive paid prioritization and require network management transparency -- there's a wide range of ISP behavior that will fall outside of the traditional definition of net neutrality, like Comcast refusing to authenticate HBO Go on Playstation 4
to protect its set top box empire, or carriers blocking Google Wallet
for "security reasons" to (unsuccessfully) give their own mobile payment platforms a leg up. And while the FCC says it's going to use its new Title II authority to "keep an eye on" issues like interconnection, nobody actually knows what this means.
AT&T of course has been at the forefront of trying to test the FCC's boundaries for anti-competitive behavior for years, most recently with its Sponsored Data
effort, which tries to pass off charging companies for cap-exemption as a great boon to consumers. AT&T's also been at the forefront of blocking access to services
or throttling its grandfathered "unlimited" data plan users
to shove them toward pricier metered options. So far, the FCC seems perfectly fine with Sponsored Data and T-Mobile's Music Freedom
, even though both set incredibly bad precedents (albeit in notably different ways).
In fact, there's a myriad of anti-competitive behaviors carriers may still be able to engage in, provided they argue it's for the safety and the health of the network, or bury it under a cacophony of technical jargon. The term "reasonable network management" has long been a bane to the crafting of sensible net neutrality rules, given that carriers by their nature will always
declare their network practices reasonable, even while they're happily abusing gatekeeper power to make an extra buck. The FCC's rules again trot out this definition in stating that network management is obviously fine if it's honestly about the health of the network:
"The record broadly supports maintaining an exception for reasonable network management. We agree that a network management exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to optimize overall network performance and maintain a consistent quality experience for consumers while carrying a variety of traffic over their networks."
The FCC's rules take things one step further in clarifying that "reasonable network management" can't be used as an excuse to make an extra buck:
"For a practice to even be considered under this exception, a broadband Internet access service provider must first show that the practice is primarily motivated by a technical network management justification rather than other business justifications."
Yet as it stands, AT&T's pretty clearly using network management to make an extra buck. For years, the company has been throttling its grandfathered unlimited customers once they reach 5 GB, a practice intended to drive them to more expensive metered plans. And as Ars Technica notes
, it's entirely unclear if the FCC's going to act. AT&T, meanwhile, has been circulating this presentation
arguing its behavior is perfectly above board. By the time the rules solidify and the FCC does act (should it act), who knows how many unlimited AT&T customers will be left:
"Given the 60-day waiting period before rules go into effect, the time it will take the FCC to evaluate complaints, and uncertainty over how rules will apply, AT&T can keep throttling unlimited data without fear for a good while. By the time AT&T is forced to stop, if indeed that happens, many customers will have already given up their old unlimited data plans and switched to subscriptions that charge them extra every time they exceed their cap. That's what AT&T was after all along, and for now it's still getting what it wants."
Between that and the FCC's refusal to identify zero rated apps as a threat to net neutrality
(the practice is outright banned in Chile, Canada, The Netherlands, Norway and Slovenia), you might start to wonder how serious the FCC is really going to be when it comes to policing the murkier (but just as important) edges of anti-competitive behavior. Is the FCC going to be a tough, flexible watchdog on the beat? Or is it going to be so afraid of the hand-wringing over "onerous regulations" -- and so eager to have the debate settled -- that it's intentionally apathetic to more subtle abuses?
And that's the rub: it's great
to have rules that give the FCC the flexibility to act against anti-competitive behavior, but they're only useful if the FCC actually successfully uses them. There are more than a few worrying indications that ISPs will be able to engage in net neutrality violations under our new paradigm -- just as long as there's a layer of semi-believable, faux-technical pretense justifying it. Yes, probably gone are the days where carriers could simply block services they don't like
, but we've entered a more dangerous, subtle era in the fight for net neutrality.
Moving forward, each time consumers believe their ISP is engaged in anti-competitive behavior that exists in these nebulous grey areas (alongside zero rated apps and interconnection), they'll need to file a complaint with the FCC -- a process the EFF notes benefits deep-pocketed ISPs
. ISP lawyers will then go to great lengths to explain how everything they're doing is simply for the health and security of the network and great benefit to the consumer
, and it will be up to the FCC and consumers to consistently see through this obfuscation and do the right thing. Similarly, with net neutrality abuses being intentionally more difficult to clearly define, we'll likely start seeing more Chicken Little complaints
than ever before, only adding to the uncertainty.
In other words, if you thought the net neutrality debate just got remotely settled by the creation of new Title II rules, you're probably going to be gravely disappointed. While the rules are a good start, we've likely only just finished chapter seven of what promises to be an epic, forty-five chapter novel -- one that's going to require the undivided, persistent attention of those hoping to protect a healthy, open Internet.