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The decades-old idea that could break the net neutrality logjam

Ever since the D.C. Circuit court ruled that the government can't ban Internet providers from blocking or prioritizing Web traffic, the Federal Communications Commission has been looking for a way to get around the ruling. 

For net neutrality advocates, the few proposals that have emerged so far aren't satisfying; they're all a little risky, and they aren't guaranteed to produce the results that the FCC wants.

Now a new recommendation has federal regulators sitting up. Under the proposal, regulators would surgically apply new rules on Internet providers that otherwise could only be imposed on phone companies. And with that, the FCC could solve some of the thorniest issues surrounding net neutrality,  according to a paper co-written by Columbia Law scholars Tim Wu (who coined the term "net neutrality") and Tejas Narechania.

Just turn it upside down

The trick, they say, is to change how people view the Internet's business relationships.

"We've been looking at this modern art painting the wrong way," Wu said in an interview. "We just have to take the thing, turn it upside down and it's simple."

Here's what the authors propose. Until now, the debate about net neutrality has been about whether Internet providers could make it harder to reach certain Web sites or services. By this description, consumers are harmed because they're prevented from getting to someplace, like Netflix. But the Internet doesn't actually work this way. You don't walk to Netflix's doorstep and say, "I'm here! Open up!" Instead, your computer places a call to Netflix and says, "Hey, I'd like to watch 'The Hangover.'" Netflix then responds to that request by sending you the movie.

(philcampbell / Flickr)

A broadband provider's only role here is to carry that traffic from point A to point B — completing the economic transaction being conducted separately by Netflix and you. That's not much different from the way telecom companies have handled phone calls for decades. Using that logic, Wu and Narechania argue that the FCC should selectively be able to apply more stringent, telecommunications-type regulations to certain aspects of an industry that tends to escape easy definition.

This might seem obvious to anyone who actually uses the Internet. But for the purposes of policymaking, it's not so clear. That's because our current regulations take an outdated view of the Web, the authors argue.

The Internet as an information service

Historically, the FCC regulated the Internet as an information service — a method of data retrieval made possible by your Internet provider. In the heady days of AOL, your ISP effectively was the Internet. You used its e-mail client, its search engine, its built-in browser.

Today, that's not the case. We still get to the Internet through our ISPs, but they're no longer the locus of our Internet experience. We turn to Google for e-mail and Yelp for restaurant recommendations. We watch YouTube for video — and Netflix and Hulu. We have apps that let you control your own appliances over the Internet. The old days of looking out at the world through your ISP's Web portal are over.

Someday, the ISPs may launch compelling content applications of their own again, and start competing in earnest with the likes of Facebook. But as far as most of us are concerned, broadband providers' only responsibility is to carry data that other companies have delivered to them in response to a user request.

From Wu and Narechania's perspective, this describes exactly what phone companies do: Establish the connection between a caller and a responder for the purposes of a transaction. And this telecommunications function is increasingly what we pay Internet providers to do — unlike before, when they offered telecommunications as one of a bundle of features that together added up to an "information service."

Under these conditions, the authors say, the FCC would be completely justified in applying Title II of the Communications Act — the part of the FCC's congressional charter that lets it apply blanket restrictions on phone companies — to broadband companies, which are currently regulated lightly as Title I businesses.

Side benefits

There are a few other reasons Wu and Narechania find this attractive. For one thing, it addresses the interconnection disputes underlying, for example, the Netflix-Comcast deal. In that scenario, Comcast effectively treats Netflix as a customer, demanding payment in exchange for carrying its video to subscribers. That's the only service Netflix gets from any broadband provider, the authors say.

"When Verizon delivers Netflix content to Verizon subscribers, it does not also offer Netflix 'e-mail, newsgroups, and the ability to create a Web page,'" they wrote. "Instead, Verizon provides a discrete transmission service."

David Cohen, executive vice president of Comcast Corp., from left, Christopher Yoo, John H. Chestnut professor of law, communication, and computer and information science at the University of Pennsylvania, Arthur Minson Jr., executive vice president and chief financial officer of Time Warner Cable Inc., James Bosworth, chief executive officer of Back9Network Inc., and Richard Sherwin, chief executive officer of Spot On Networks LLC, talk before the start of a Senate Judiciary Committee hearing in Washington, D.C., U.S., on Wednesday, April 9, 2014. (Andrew Harrer/Bloomberg)

That's distinct from the traditional understanding of broadband as an information service, the kind of packaged service we were just talking about. So if it's not an information service, and the only service being provided to Netflix is a transmission service, then why not regulate that behavior like we regulate other transmission services?

The other benefit to this approach is that it's potentially less explosive than reclassifying broadband companies completely under Title II. Analysts say full-scale reclassification would be politically fraught; it might anger some in Congress and threaten the FCC's budget. Insiders say a more limited application of Title II, however, might fare better — and the FCC is apparently warm to the idea.

"So we were meeting with staff in the chairman's office," said Wu, "and we said, 'It's a way of giving the commission interconnection and net neutrality at the same time; we have the magic formula and it'll solve all your problems.' Someone banged the table and said, 'Great. Bring it on.'"

Some pushback

There are other alternatives. One, which I've written about before, leans on an obscure part of the Communications Act called Section 706. It basically gives the FCC the authority to regulate broadband companies to the extent that they're linked to broadband infrastructure deployment. If the FCC can argue that an ISP's network practices are hindering the spread of broadband, it can intervene. Some, including the pro-net neutrality group Public Knowledge, are wary about leaning on 706 too heavily. It's not clear how far the FCC can run with that authority — and besides, if it turns out that the answer is "pretty far," that raises concerns about government overreach.

The FCC could still decide to pursue total reclassification — the nuclear option. Some, such as Free Press policy director Matt Wood, continue to push for that option. Wu's more limited proposal is still likely to provoke a crisis, according to Wood.

"It's kind of like saying, 'Let's find a way that has 50 percent of the reward and 100 percent of the risk," he said.

While Wu's plan gives the FCC the wiggle room to regulate downstream traffic while treating upstream traffic differently, other net neutrality advocates say that could still hurt consumers in the end. Internet providers could switch from blocking downloads to blocking transmissions from people's devices, said Marvin Ammori, a Future Tense fellow at the New America Foundation and a former top lawyer at Free Press.

"If I want to upload things to Dropbox, or movies to Kickstarter or YouTube, that should be totally protected," said Ammori.

After all, even Netflix has to receive a signal from you before it knows to start streaming "The Avengers."

Brian Fung covers technology for The Washington Post, focusing on telecommunications and the Internet. Before joining the Post, he was the technology correspondent for National Journal and an associate editor at the Atlantic.



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