Net neutrality rules

By Joe Nocera

Sunday, Nov. 23, 2014 | 2:02 a.m.

Is there anybody out there who opposes net neutrality?

Net neutrality, of course, is the principle that calls for the Internet to remain free and open — with no “fast lanes” that would allow some content providers to take priority over others. Earlier this month, Washington was buzzing with talk about net neutrality, yet out-and-out critics were hard to find.

President Barack Obama, of course, is in favor of net neutrality; indeed, he started this whole kerfuffle when the White House released a short video in which the president called on the Federal Communications Commission to “implement the strongest possible rules to protect net neutrality.” Tom Wheeler, the former cable industry lobbyist who is the chairman of the FCC, also wants net neutrality.

So do the big Internet companies like Netflix and Google, the ones that might have to pay Internet service providers, or ISPs, to get on a fast lane if such a thing existed. (That’s called “paid prioritization.”) Net neutrality is favored by lots of small Internet companies — the kind that might not have the means to pay for prioritization — and dozens of public interest groups, too. When the FCC asked for comments on net neutrality, it received an astonishing 3.7 million replies, a vast majority urging the commission to embrace it.

Even some Internet service providers say they agree with the goals of net neutrality. After Obama’s video was released, Comcast, the biggest of them all, said it agreed with almost everything for which the president called.

Alas, the key word in the previous sentence is “almost.” In his video remarks, Obama was surprisingly specific about what he hoped Wheeler and the FCC would do: apply Title II of the 1996 Telecommunications Act to ISPs like Comcast, AT&T, Verizon and Time Warner Cable. Title II would reclassify these companies as akin to public utilities — like the old telephone company — and would regulate them as such.

Although the president insisted many of the more onerous parts of Title II — such as price regulation — could be held in abeyance, the ISPs dread the thought of being regulated under Title II. They would prefer to be regulated under another part of the Telecommunications Act: Section 706, which calls for a lighter touch.

Then there is the question of what, exactly, net neutrality entails. Does it include only “the last mile” — that is, the relationship between the ISP and the Internet user? Or does it also include “interconnection” — the point at which a content company like Netflix joins the ISP’s network and begins its journey to the customer? Currently, Netflix pays a fee to four big ISPs to gain uncongested access to their networks. Not surprisingly, Netflix says net neutrality means it shouldn’t have to pay this fee. Comcast and its ISP brethren disagree.

One reason federal net neutrality rules have been so difficult to achieve is that, in the past, when the FCC has tried to regulate the ISPs without using a Title II designation, it has had its head handed to it in the courts. The courts have essentially ruled that without that classification, the FCC lacks the authority to apply rules that would ensure net neutrality.

Thus it was a few weeks ago, The Wall Street Journal published a story reporting Wheeler had a compromise idea: Use Title II to regulate the back end — the point where Netflix accesses Comcast’s network — and use Section 706 for the front end, where the consumer is. It is generally assumed the FCC leaked Wheeler’s “hybrid” idea as a trial balloon.

The balloon, however, was quickly burst. Net neutrality advocates didn’t think it went far enough, while the ISPs thought it went too far. At which point the president decided to weigh in. Wheeler may or may not take the president’s suggestion — he doesn’t have to, as the FCC is an independent agency — but, at a minimum, new net neutrality rules, which the agency has been trying to accomplish for a half-dozen years, will be delayed again. And whatever the FCC decides, there will surely be a new round of lawsuits. Sigh.

Net neutrality is demonstrably a good thing, and it needs to be enshrined in law, not just done in good faith as it is now. The real problem is with the law itself: It was never meant to regulate broadband. Title II is too blunt an instrument, while Section 706 doesn’t give the FCC enough authority. That’s why the agency has seemed to be dancing on the head of a pin as it tries to come up with net neutrality rules that will pass muster.

Of course, there is another way to accomplish net neutrality. Congress could pass a law that allowed the FCC to write net neutrality rules — but went no further.

Yeah, right. Better keep dancing, Chairman Wheeler.

Joe Nocera is a columnist for The New York Times.