Everything you should know about the FCC’s new net neutrality proposal


FCC Chairman Tom Wheeler, left, and Commissioner Ajit Pai testified during a Senate hearing last month.  (Reuters/Jonathan Ernst)

You may have heard that the Federal Communications Commission is circulating new proposals on net neutrality, the idea that all Internet traffic should be treated equally by broadband providers. Consumer advocates are saying the new plan is a reversal of FCC policy; others, including the commission's chairman, say it's nothing of the sort. Who's right? And what do these new rules mean for you? Here, we try to give a few simple answers to a complicated subject:

Give me a one-line answer: How good or bad is this for me?

Potentially, it's bad. Web services could have to pay a toll to reach you; those services could become more expensive as they pass those costs on to you; companies that don't pay up could suffer from slower service; and new firms with innovative ideas might die because they can't spare the cash to pay for the preferential treatment that the new net neutrality rules would allow.

I'm sorry. Remind me what net neutrality is, again?

That's okay — as I said, it's complicated. The basic idea, described by Columbia Law School scholar Tim Wu, is that consumers should be able to access whatever Web content they like without their Internet service provider's interference. If ISPs are allowed to block or slow down Web traffic they don't like — say, if Verizon slows down Netflix because it sees Netflix as a threat to its own Redbox Instant service — that could hurt consumers.

Okay, thanks for the refresher. So you say the FCC is considering new rules?

That's right. The FCC's old rules from 2010 said that Internet providers could not block or unreasonably discriminate against different forms of Web traffic. Unfortunately for the agency, those rules were struck down by a federal court in January when Verizon successfully argued that the FCC had overstepped its legal authority in creating that rule. Now the FCC is trying to reinstate its regulations via a different legal pathway.

So everything is restored now, right?

Not exactly. The rules, as proposed, do bring back the ban on traffic blocking. But they also open the door to companies striking deals with one another for better access to customers. Those deals would allow content companies, such as Facebook or Google, to pay Internet providers, like Comcast or Verizon, for smoother, premium service.

The proposal still has a long road ahead of it. It must be debated within the FCC before it can even be put to a vote, which is when the proposed rules would become public. Then the rest of us get a chance to look at what's being floated and to comment on it. But FCC Chairman Tom Wheeler says he is confident that the new rules will be in place by year's end.

What's all this about a "reversal" I'm hearing?

Consumer advocates say that the paid deals that the new rules permit will lead to a tiered Internet in which the wealthiest companies will get the best access to consumers, while smaller companies that can't afford to pay up will be hurt. According to the proposal's critics, this could wind up undermining the core ambition behind net neutrality rules, which is ultimately to make sure that nobody on the Internet enjoys an advantage over anyone else.

Wheeler, however, doesn't see it that way. "There are reports that the FCC is gutting the open Internet rule. They are flat out wrong," he said in a statement Wednesday. "There is no 'turnaround in policy.'"

For months, Wheeler has hinted that he would be okay with a fast-lane Internet. So this doesn't come as a surprise to anyone who's watched the new chairman closely.

Is this week's proposal weaker than what we had before?

Depends on how you look at it.

To make things super simple, there are basically two key provisions in play here. One is the prohibition on blocking that would prevent ISPs from denying customers access to individual Web sites. The other is a rule against traffic discrimination — the part that says ISPs shouldn't slow down traffic.

As we've noted, the new proposal keeps the blocking prohibition. The more controversial part deals with the rule against traffic discrimination. FCC officials say that the original 2010 rules put limits on "unreasonable" traffic discrimination. In the commission's view, a pay-for-play Internet does not imply unreasonable discrimination. That's partly why Wheeler says that the agency hasn't reversed course on net neutrality.

But consumer groups argue that the original net neutrality rules were already pretty weak to begin with. The commission's initial legal strategy was to regulate broadband companies under what's known as Title I of the Communications Act — the law that gives the FCC its power. The alternative was to regulate broadband companies under Title II, which would have been politically controversial but would have given net neutrality opponents less of an opening in court. Title II is the authority the agency uses to regulate phone companies. If it had gone that route, the FCC would have been free to apply its original rules without fear of a legal challenge.

Net neutrality activists say that by circulating its new proposal this week, the FCC missed another opportunity to use Title II.

So, how does the FCC intend to enforce competition in a pay-for-play world?

The commission plans to watch the deals that get struck very closely on a case-by-case basis. If it suspects that an agreement violates a "commercial reasonableness" test, it will consider stepping in.

What goes into the "reasonableness" test?

Good question. According to an FCC official, the commission would establish a baseline for reasonability that would then be augmented by several subjective factors, such as whether the deal is anticompetitive, bad for consumers, would infringe upon free speech and is struck in good faith.

The FCC wouldn't need to wait for someone to complain that a deal violates the net neutrality rules before it acts. But the public would also be free to submit complaints.

Brian Fung covers technology for The Washington Post.
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