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.