Despite Protests, Internet “Fast Lanes” Proposal Gets OK
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The Fiscal Times
May 15, 2014

In a 3-2 part-line vote Thursday, the Democrats on the Federal Communications Commission overruled the minority Republicans and voted to move forward with a proposed rule that, according to many, would change the nature of the Internet as we have come to know it.

The proposal’s somewhat Orwellian title, Protecting and Promoting the Open Internet, would allow Internet Service Providers, such as Comcast, Time Warner, Verizon, and Charter, to provide a “fast lane” into consumers’ homes for content providers willing to pay for it. That means big deep-pocketed Internet players, like Netflix or Google’s YouTube, could pay to have their videos stream at higher speed and higher quality than smaller or newer competitors trying to break into the market.

Related: U.S. Broadband Access Is Terrible; Fixing It Could Be Worse

Opponents of the FCC’s move, many of whom gathered to protest in cities across the U.S. Thursday, say the move, if allowed to become a final rule, would do the exact opposite of “protecting and promoting” an open Internet by violating the concept of “net neutrality.” That idea, which means data flowing over the Internet is handled on a first-come, first-served basis, is the basis of the broad commercial success of the Internet.  By creating two tiers of service, they argue, the FCC takes away the ability of small firms to compete with large firms, creating barriers to innovation that will ultimately have a negative effect on consumers.

FCC Chairman Tom Wheeler insists that the proposal protects consumers by making it illegal for ISPs to block content from providers or to discriminate against users in any way. He said that when a consumer signs a contract with an ISP, the ISP will be obligated to deliver whatever content the user wants, at the speed specified in the contract.

Related: Protest for Net Neutrality Goes Wide as FCC Wavers

A fact sheet released by the FCC says the proposal stipulates that, “Broadband consumers must have access to the content, services and applications they desire. Innovators and edge providers must have access to end-users so they can offer new products and services.” It also considers a requirement that would force ISPs to upgrade their systems to keep pace with innovation.

Critics immediately noted that most contracts for Internet service specify not a fixed speed, but speeds “up to” a certain level, and asked how it would be possible to enforce the rule. They also noted that challenging an ISP suspected of violating the rule would be prohibitively costly, both for individual users and for small content providers.

The proposal is facing massive resistance from the tech world. More than 100 major Internet firms, including Amazon, Microsoft, Yahoo, Google, and others signed a letter of protest. Other letters have come from venture capital investors, non-profits, and others. 

Wheeler, a former lobbyist for the cable television industry, which supports the “fast lane” provision, has publicly complained that reports about his proposal have been misleading. The move is an effort to get around court rulings that invalidated two former attempts by the FCC to codify “net neutrality” under the agency’s authority to enforce the Communications Act.

Related: 100 Groups Say FCC Net Proposal Is Discriminatory

Wheeler has consistently tried to craft the rulemaking under the FCC’s authority to regulate the delivery of broadband services. Critics, who say that broadband service is more properly viewed as a public utility, like water or electricity, and that the ISPs ought to be declared “common carriers,” like phone companies, which would open them up to tougher supervision and cement the concept of neutrality.

The proposed rule voted on Thursday was a modified version of Wheeler’s original proposal, and contains many elements meant to mollify those worried about the future of the Internet.

First of all, the agency declared an expanded comment period that will allow 120 days for the public and interested parties to contact the agencies with reactions and recommendations about the rule.

Further, it asks for input on specific questions, including whether ISPs should be designated common carriers, whether fast lanes should be banned entirely, what transparency requirements ISPs should face, and a number of other subjects.

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A longtime reporter on the intersection of the federal government and the private sector, Rob Garver is National Correspondent, based in Washington, D.C. He has written for ProPublica, The New York Times and other publications.