The Federal Communications Commission (FCC) is proposing new rules for the Internet that have significant implications for how all of us access and pay for content online. Under the FCC’s proposal, Internet Service Providers (ISPs) would be allowed to negotiate with content providers to collect a fee for faster delivery.
For instance, popular movie service Netflix recently agreed to pay Comcast (the largest ISP in the U.S.) for faster delivery of its video stream. Netflix has since complained to the FCC that its arrangement with Comcast (and a similar one it reached with Verizon) goes against the principle of network neutrality.
Advocates for network neutrality believe that all Internet content, no matter the type (video, text, etc.) or who created it, should be treated the same in the transfer process. This means that there is a single market for ISPs in which subscribers pay for access (and varying levels of speed), and those subscribers can then access any lawful content or service available online.
However, the FCC’s recent proposal gives ISPs like Comcast what they’ve wanted for awhile — a two-sided market — as content providers (like Netflix) would also pay ISPs to reach costumers faster on the “last mile” of the connection that the ISP provides. So even if you (the customer) pay your ISP for the maximum speed possible, if the content you want doesn’t pay the same ISP for preferential treatment it gets put into a slow lane no matter how much you are paying for service or speed.
Under the FCC’s newest proposal, the agency promises to review these two-sided market arrangements and determine whether they are “commercially reasonable” so smaller competitors don’t get priced out of the market.
Although these deals may be acceptable to powerful ISPs and content providers who are willing and able to pay, they aren’t necessarily fair to consumers who will ultimately pay higher fees for less choice.
Will Comcast customers get Netflix without the annoyance of buffering? Yes, but only because Netflix has the ability to pay. However, not all Netflix competitors (or would-be competitors) may be able to do the same, putting start-ups and entrepreneurs that may offer better service, or more choice, at the greatest disadvantage. Slow-moving websites and content services don’t last long. Small businesses that want to build their web presence to better market their products and services could be severely limited.
And what is worse? Netflix will pass the extra cost along to its customers. After agreeing to pay Comcast, Netflix announced a fee increase for new subscribers. Time Warner Cable (TWC) customers in Cincinnati should take note, as Comcast plans to acquire TWC by the end of the year, meaning many of us will be Comcast customers rather soon.
It doesn’t seem likely that the FCC will order Comcast or Verizon to undue their deals with Netflix, especially after Netflix has already agreed to pay them. Nor does it seem that FCC Chairperson Tom Wheeler wants to go against his former colleagues in the communications industry (as he is the past president of both the National Cable Television Association and Cellular Telecommunications and Internet Association — both of which are strongly opposed to network neutrality rules).
However, there is another option besides the FCC making a case-by-case assessment of what it considers to be “commercially reasonable” — and that would be for the FCC to classify broadband ISPs as common carriers under Title II of the Communications Act. Just like basic telephone service providers, the postal service and other common carriers, ISPs should not be allowed to discriminate against certain types of content.
Reclassifying ISPs as common carriers would also be consistent with the way they are viewed under other parts of the law. For instance, ISPs are exempt from libel suits for messages posted by third-party users, unless the ISP enacts significant editorial control over user comments. Similarly, ISPs are exempt from liability for copyright infringement for simply transmitting content posted by users, unless the ISP is notified about the infringing activity. In both cases, the law assumes that ISPs are neutral networks — common carriers — without significant editorial control over content.
More importantly, there is still time for us to tell the FCC what we think is a reasonable approach to network neutrality — and that is Title II reclassification of broadband Internet Service Providers. After the FCC’s proposal is formally announced on May 15, you can participate in the public comment proceeding at FCC.gov.
DR. JEFFREY BLEVINS is Head of the Journalism Department and Associate Professor at the University of Cincinnati, where he teaches media law and ethics. In 2009 he served as a federal grant reviewer for the Broadband Technologies Opportunity program administered by the Department of Commerce and National Telecommunications and Information Administration. Contact: Jeffrey.Blevins@UC.edu