Why the FCC Is Being So Vague About Net Neutrality

The agency wants flexible rules to police Internet service providers.

WASHINGTON, DC - MAY 15: Federal Communications Commission (FCC) Chairman Tom Wheeler speaks during a news conference after an open meeting to receive public comment on proposed open Internet notice of proposed rulemaking and spectrum auctions May 15, 2014 at the FCC headquarters in Washington, DC. The FCC has voted in favor of a proposal to reform net neutrality and could allow Internet service providers to charge for faster and higher-quality service.   
National Journal
Brendan Sasso
May 22, 2014, 1 a.m.

Fed­er­al reg­u­lat­ors are try­ing to leave them­selves plenty of power to over­see the In­ter­net — they’re just not will­ing to get too spe­cif­ic about what they plan to do with it. 

The Fed­er­al Com­mu­nic­a­tions Com­mis­sion is mov­ing ahead with a net-neut­ral­ity pro­pos­al, but no one knows ex­actly what busi­ness prac­tices it would ban. And for the FCC, that’s all part of the strategy.

The com­mis­sion wants a vague stand­ard to al­low In­ter­net com­pan­ies to ex­per­i­ment with new busi­ness mod­els, while giv­ing the agency au­thor­ity to step in when it sees ab­uses.

A seni­or FCC of­fi­cial ar­gued that “put­ting ri­gid rules in place” would not let the In­ter­net “evolve in a nat­ur­al way.”

But the of­fi­cial ad­ded that “the gov­ern­ment has to be in a po­s­i­tion to over­see the In­ter­net and in­ter­vene if it needs to.”

FCC Chair­man Tom Wheel­er has re­peatedly ex­tolled the vir­tues of en­for­cing net-neut­ral­ity rules on a “case-by-case basis.”

Un­der his pro­pos­al, In­ter­net ser­vice pro­viders would be re­quired to handle traffic in a “com­mer­cially reas­on­able” way. The com­mis­sion has done little to ex­plain what “com­mer­cially reas­on­able” means.

The reg­u­lat­ors fear that they can’t an­ti­cip­ate how the In­ter­net will change over the com­ing years.

New busi­ness mod­els could emerge that al­low com­pan­ies to im­prove the qual­ity of cer­tain ser­vices, while not harm­ing the over­all In­ter­net. Lock­ing the mar­ket in place now with de­tailed rules could freeze fu­ture in­nov­a­tion, they fear. But the FCC also wants to en­sure it has the weapons it needs to fight broad­band pro­viders who try to ma­nip­u­late the In­ter­net in ways that would ul­ti­mately be bad for con­sumers.

That am­bi­gu­ity has frus­trated con­gres­sion­al Demo­crats and lib­er­al ad­vocacy groups who want as­sur­ances that the FCC will en­act strong net-neut­ral­ity reg­u­la­tions. Ad­voc­ates of net neut­ral­ity ar­gue that broad­band pro­viders like Com­cast shouldn’t be al­lowed to in­ter­fere with In­ter­net traffic or con­trol what sites con­sumers vis­it.

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Vague rules could al­low fu­ture FCC chair­men (es­pe­cially Re­pub­lic­ans) to be lax on en­force­ment, let­ting In­ter­net pro­viders get away with a host of ab­uses. The next ad­min­is­tra­tion could es­sen­tially ig­nore net neut­ral­ity if the reg­u­la­tions don’t spe­cify which par­tic­u­lar busi­ness prac­tices are il­leg­al.

Net-neut­ral­ity ad­voc­ates don’t want the rules for the In­ter­net to change with each pres­id­ent.

Law­makers tried to press Wheel­er for de­tails about his pro­pos­al at a House hear­ing on Tues­day, but only came away frus­trated.

Rep. Anna Eshoo, the top Demo­crat on the House Com­mu­nic­a­tions and Tech­no­logy Sub­com­mit­tee, de­man­ded that Wheel­er say wheth­er he will al­low broad­band pro­viders to pri­or­it­ize traffic for web­sites that pay spe­cial fees.

“I don’t be­lieve there ought to be haves and have-nots,” Wheel­er began be­fore Eshoo cut him off. “No, no — just an­swer my ques­tion. Just tell me.”

Wheel­er ex­plained that the FCC will block any prac­tices that hurt con­sumers or com­pet­i­tion. The de­tails of what that means are still murky.

The “com­mer­cially reas­on­able” stand­ard al­lows some ne­go­ti­ations between In­ter­net pro­viders and web­sites for faster ser­vice. But the FCC could still block “fast lane” deals for a range of reas­ons.

For ex­ample, the pro­pos­al “tent­at­ively con­cludes” that it would be il­leg­al for a broad­band pro­vider to fa­vor traffic from an af­fil­i­ated web­site. So Com­cast, which owns NBC, wouldn’t be al­lowed to cre­ate a spe­cial fast lane for NBC videos.

For most oth­er situ­ations, though, the FCC would re­main ag­nost­ic un­til it’s presen­ted with a par­tic­u­lar deal or com­plaint.

Har­old Feld, a seni­or vice pres­id­ent for the con­sumer ad­vocacy group Pub­lic Know­ledge, ar­gued that clear­er rules would give con­sumers and com­pan­ies a bet­ter sense of what to ex­pect.

“When you have the ac­tu­al con­duct spelled out, people gen­er­ally fol­low it. There’s a level of cer­tainty you get,” Feld said. “The more fuzzy the rules, the less clear the guid­ance, and the more lit­ig­a­tion you have to have to define what is and is not ac­cept­able be­ha­vi­or.”

Feld ar­gued that the rules should ex­pli­citly ban paid pri­or­it­iz­a­tion, which he claimed would dis­tort the In­ter­net in fa­vor of the largest cor­por­a­tions.

Ad­voc­ates of so-called fast lanes ar­gue that they can — at least in some cases — make some ser­vices bet­ter, while not ne­ces­sar­ily de­grad­ing oth­er con­tent.

The FCC voted last week to make its pro­pos­al pub­lic and be­gin ac­cept­ing com­ment. It will have to vote again in sev­er­al months to fi­nal­ize the reg­u­la­tions.

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