Proponents of network neutrality regulation are cheering the announcement this week that the Federal Communications Commission will seek to reclassify Internet Service Providers as “common carriers” under Title II of the Telecommunications Act. The move would trigger broad regulatory powers over Internet providers—some of which, such as authority to impose price controls, the FCC has said it will “forbear” from asserting—in the name of “preserving the open internet.”
Two initial thoughts:
First, the scope of the move reminds us that “net neutrality” has always been somewhat nebulously defined and therefore open to mission creep. To the extent there was any consensus definition, net neutrality was originally understood as being fundamentally about how ISPs like Comcast or Verizon treat data packets being sent to users, and whether the companies deliberately configured their routers to speed up or slow down certain traffic. Other factors that might affect the speed or quality of service—such as peering and interconnection agreements between ISPs and large content providers or backbone intermediaries—were understood to be a separate issue. In other words, net neutrality was satisfied so long as Comcast was treating packets equally once they’d reached Comcast’s network. Disputes over who should bear the cost of upgrading the connections between networks—though obviously relevant to the broader question of how quickly end-users could reach different services—were another matter.
Now the FCC will also concern itself with these contracts between corporations, giving content providers a fairly large cudgel to brandish against ISPs if they’re not happy with the peering terms on offer. In practice, even a “treat all packets equally” rule was going to be more complicated than it sounds on face, because the FCC would still have to distinguish between permitted “reasonable network management practices” and impermissible “packet discrimination.” But that’s simplicity itself next to the problem of determining, on a case by case basis, when the terms of a complex interconnection contract between two large corporations are “unfair” or “unreasonable.”
Second, it remains pretty incredible to me that we’re moving toward a broad preemptive regulatory intervention before we’ve even seen what deviations from neutrality look like in practice. Nobody, myself included, wants to see the “nightmare scenario” where ISPs attempt to turn the Internet into a “walled garden” whose users can only access the sites of their ISP’s corporate partners at usable speeds, or where ISPs act to throttle businesses that might interfere with their revenue streams from (say) cable television or voice services. There are certainly hypothetical scenarios that could play out where I’d agree intervention was justified—though I’d also expect targeted interventions by agencies like the Federal Trade Commission to be the most sensible first resort in those cases.