Here Is What’s Actually Going On With The FCC And Net Neutrality

Today, rumor hit that the FCC is going to about-face on net neutrality and let cable companies and other ISPs charge for a “fast lane.” The problem is that the rumor is wrong, or at least painfully ill-informed. Here’s why.

The FCC Has Already Denied It

First of all, when the chairman of the FCC says, oh, this:

There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong. Tomorrow we will circulate to the Commission a new Open Internet proposal that will restore the concepts of net neutrality consistent with the court’s ruling in January. There is no ‘turnaround in policy.’ The same rules will apply to all Internet content. As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted.

That kind of contradicts the whole “INTERNET DOOOOOOOOM!” narrative. So why are people insisting it’s an “about face?”

The Court Ruling Is The Problem

What’s messing with the FCC is the court ruling handed down in January that started all this. The ruling is that the FCC does, in fact, have the power to regulate Internet service providers; it’s just that the court has ruled that the FCC chose the wrong legal framework to do so.

That legal framework is, no matter how you slice it, a mess. All of this is based on a law passed nearly two decades ago that basically didn’t see a single modern technological change coming. Said law differentiates between a telecommunications provider, like your cable company when it sells you phone service, and an information services provider, like your cable company when it sells you Internet service.

The problem is that the FCC is constrained by this ruling, and either way, it allows ISPs to privilege some traffic over others. Either ISPs are common carriers or they’re something else, possibly something that doesn’t exist yet and that Congress will have to create. None of these options are great: For example, declaring ISPs common carriers wouldn’t make the Net perfectly neutral, and would possibly grease the wheels for a series of cable mega-mergers that would make this problem even worse.

To be clear, the FCC has the power to regulate broadband Internet access. The court was clear on that one. The problem is that the FCC doesn’t have the legal tools it needs to keep Comcast from collecting protection money from Netflix right now. Until Congress gives it those tools, and don’t hold your breath, essentially the FCC has to figure out which evil is the lesser.

So What’s Going To Happen?

At a guess, the FCC will take a “floors and ceilings” approach; it’ll set a reasonable minimum speed that must be provided, and heavily regulate how much ISPs are allowed to charge to speed that up. It will also probably have rules that sites can’t be blocked or slowed down for any reason.

Just to be clear, long-term, the ISPs lose. And they know it, which is why, for example, AT&T is producing TV shows. They’re essentially trying to keep the future from happening as long as possible, and frankly it’s only a matter of time until that particular dam bursts. There are so many internet access technologies coming, from the Outernet to white-space broadband, and cable providers in particular will be charging more and more money for worse and worse service.

In other words, all that’s really needed is a little patience. Roads are about to open up that let us leave these guys behind.