Policing Net Neutrality

Enforcing the FCC's upcoming network-neutrality rules will be easier said than done

Image: iStockphoto

The U.S. Federal Communications Commission wants its coming rules on network neutrality to revive the ”free and open” Internet of the 1990s.

Sorry, FCC. Those days are gone. Your rules won’t bring them back.

The early Internet was free and open for two main reasons. The Internet was (and still is) based on a flexible set of protocols that anyone can use. And access to the Internet was (but is no more) afforded by hundreds of competitive Internet service providers (ISPs). Back in the dial-up days, nobody talked about net neutrality—the concept that ISPs shouldn’t be able to block or slow particular Internet applications or uses. There was no need. An ISP that tampered with customers’ content would soon be gone.

ISP competition was itself the result of an FCC decision: the 1985 Computer III order, which promised every ISP access to essential telephone network facilities. To be sure, some phone companies were slow to comply, and FCC enforcement was uneven. But at least the ISPs had the law on their side.

Not so for broadband. Starting in 2002, the FCC relieved broadband Internet providers of any obligation to open their facilities to other ISPs. Now most users have access to only one or two broadband providers, giving those companies a throttlehold over customers’ content. It was the abuse of this power that led to the present calls for network neutrality.

Some of the problems arose because most broadband ISPs are also in the telephone or cable-TV business and are threatened by less expensive services available on the Internet. The ISP operation has both motive and means to protect the parent company’s interests. Recently, for example, cable ISP Comcast Corp. blocked content that might compete with its pay-per-view service, and wire-line phone company Madison River Communications Corp. blocked access to Vonage Holdings Corp., a provider of Voice over Internet Protocol. The FCC cited these instances, among others, in proposing the new rules.

Will those rules stop the abuses? Will they bring back the freewheeling, anything-goes atmosphere that fostered so much innovation back in the dial-up days?

Probably not.

For one thing, the proposed rules are worded very generally. Take this example: ”Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” The needed specifics are completely missing. This is like a traffic sign that reads, ”Drive safely.” Extreme cases aside, pulled-over drivers can always insist that they obeyed the law—ISPs likewise.

Another problem is the FCC’s stated intent to consider claimed violations of the rules on a case-by-case basis. This can be exceedingly slow—and expensive to boot.

Flash forward a few years. The net-neutrality rules are in place. A smart programmer has come up with the next YouTube or Facebook or Twitter. Users flock to it by the millions. But the application threatens the business interests of a big cable-TV or phone company. Its affiliated ISP blocks subscribers from using the application.

But now there are rules against this sort of thing. Our innovator goes to the FCC. There he must demonstrate that the ISP violated the net-neutrality rules. The vague language of those rules leaves plenty of room for the ISP’s lawyers to argue otherwise. Assuming the innovator wins that point, further dispute is likely over what the ISP must do to stop discriminating—after which the ISP may appeal, first within the FCC and then in court.

Drawing up a complaint and fending off the ISP’s defenses could run well into five figures. Appeals could easily take the total into six-digit territory. A company like Comcast or Verizon Communications could absorb this kind of expense without blinking, but few entrepreneurs can. Even fewer Internet entrepreneurs could consider it.

Remember, the big innovations of the Internet came from college kids in dorm rooms, dropouts in their parents’ garages, start-ups working in bare offices. These are the people the FCC should protect. By contrast, the ISP defending its actions is likely to be a telecommunications giant with a standing army of blue-suited lawyers.

Maybe the FCC will do the legal lifting on the innovator’s behalf. I hope so, because the alternative would be to have a nice set of net-neutrality rules with no teeth.

Even if the FCC itself were to prosecute rule-breaking ISPs, the process would probably be slow. Expect a year or more for a first decision from the FCC; another year, at least, for an internal appeal; and two years in the courts. Most Internet entrepreneurs would likely run out of time and money in the meantime. And even if the innovator does manage to prevail, years down the road, odds are that by then the one-time killer app will have missed its chance to go viral.

The proposed rules will certainly help to keep the Internet safe for well-heeled content providers like Google. But unless the FCC makes the enforcement process fast and cheap—or can coerce the big ISPs into compliance, as I propose in a recent blog entry—it will do little for the creative community that developed the Internet from a nerdy plaything into the massive resource we all rely on today. Unless individuals have swift recourse against discrimination by an ISP, the heady days of Internet innovation will soon draw to a close.

About the Author

Mitchell Lazarus is a partner in the Washington, D.C., area law firm of Fletcher, Heald & Hildreth. He blogs regularly at www.commlawblog.com.

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