Can the Internet Remain Open for Everyone?

Congress and FCC grapple with "Net Neutrality."

Nov. 4, 2011 — -- The FCC's much-debated Internet neutrality rules are set to go into effect on Nov. 20. This will be a major milestone in the Internet's history. From Day One the Internet has thrived because of its unique open platform that supports endless innovation and robust speech.

The concept of Internet neutrality assures us access to whatever websites we want to visit. It lets us use any services we want -- watching videos, listening to streaming radio stations from around the world, tweeting play-by-play updates from sporting matches -- at any time we want. Internet neutrality guarantees that all happens on a level playing field. Internet service providers (ISPs) are not allowed to play Internet "traffic cop," meaning they cannot pick and choose what websites you can visit, nor can they speed up or slow down content from any particular website or service.

Sen. Al Franken (D-Minn.) has asserted that Internet neutrality is "the First Amendment issue of our time," and that is not just political hyperbole. The soapboxes of the 21st Century -- not to mention the printing presses, libraries and political campaigns -- are now accessed via the Internet. That is why the Internet neutrality rules are so important.

It was a hard-fought battle to adopt the rules, however, and opponents are in no mood to give up. In Congress, the FCC's political foes will try to employ the little-used Congressional Review Act to nullify the agency's decision. And in court, the FCC's rules are being challenged by those who think the rules go too far and those who think they don't go far enough.

As the rhetoric and legal posturing heats up, myths and misperceptions proliferate. For example, Verizon is preparing to argue in court that, in delivering content to its customers, it is exercising its First Amendment rights, boldly comparing its need to exercise "editorial discretion" with that of newspapers and cable TV operators.

Do you think of your Internet browsing being edited the way your daily newspaper is edited? Do you expect your ISP to select what content you'll have access to, the way your cable operator selects your channel lineup? Me neither. But if the argument prevails, the future of the Internet will be much less open, innovative and free.

With so much hanging in the balance, here is a look at some of the most common myths about the FCC's openness rules. For all the teeth-gnashing this issue has generated, the truth is that the FCC's rules are actually quite moderate. They are also sufficiently flexible to account for future technological changes. This is an area where rhetoric quickly outstrips reality.

Myth: Once the rules take effect, the FCC will become the government's Internet Regulator.

Reality: The rules apply narrowly, only to companies that provide Internet access -- the Internet's physical "on ramps" which provide "last mile" connectivity between the Internet and your home. Under the rules, the vast amount of speech, commerce and civic and social activity that flows across the Internet remains unregulated.

Myth: The FCC rules will radically change how the Internet works.

Reality: Just the opposite: the rules protect against radical changes in the way the Internet works, by ensuring that consumers will continue to have access the full Internet without tampering or favoritism. The rules prevent ISPs from discarding traditional Internet access in favor of a more restricted, supervised offering. The ISPs claim they never had any intention of doing so in the first place. Since the rules reflect the way the Internet already works, key ISPs such as AT&T and Comcast have said they don't object to them.

Myth: This is a power grab by the FCC; the agency wants to regulate the Internet for the first time.

Reality: If the new rules stated that the FCC could suddenly regulate the entire traffic flow of the Internet, it would be a remarkable -- and troubling -- power grab. But the FCC is doing no such thing. These new rules apply only to the "pipes" -- the physical communications links that connect people to the Internet. While the Internet's diverse array of "information" services -- email, search, websites, social networking and the like -- have never been regulated by the FCC, there is a long history of FCC jurisdiction regarding the provision of physical communications infrastructure.

Ensuring that operators of such infrastructure do not abuse their position is a core function of the FCC. With respect to data communications in particular, in a long-running set of proceedings starting in 1971 known as the Computer Inquiries, the FCC focused specifically on the relationship between the operation of the physical communications network and the offering of "enhanced services" (the prior label for "information services").

From the very beginnings of the Internet we know today, the FCC has put in place rules to assure that nascent data and computer-related services were given every opportunity to thrive.

Myth: There is no reason for the FCC to act now. If ISP practices develop in ways that prove to be harmful, the FCC can always intervene at that time.

Reality: Once the damage is done it could be too late. Imagine the FCC trying to unravel a web of discriminatory deals after significant investments have been made and new business plans have been built. One can predict the future arguments; those today that say no "rules of the road" are needed would say that since there was no warning that certain kinds of business deals might be illegal it would be unfair for the FCC to seek to nullify those arrangements at a later date.

Myth: Competition provides a sufficient safeguard against any possible "bad behavior" by ISPs. Consumers can always "vote with their feet."

Reality: This is perhaps the most seductive myth because it just sounds so right, which is also why busting this myth is the most satisfying.

First, consumers have limited options -- often just two -- and in some communities less, when it comes to choosing an ISP.

Second, if you have ever had to switch your ISP, you know what a huge hassle it is.

Third, consumers don't have sufficient information to know if their ISP is meddling with the Internet; short of outright blocking, if a particular website or application performs poorly, a consumer can't tell if the cause is ISP-level discrimination or some other factor.

The bottom line is, once you've selected an ISP, other Internet users and online services can reach you only via that ISP. You're not going to change that ISP easily or frequently. And, if ISP discrimination becomes the norm, there will be nowhere for consumers to go to get the open Internet we all want and deserve.

Myth: The FCC rules help some companies at the expense of others. The rules effectively force ISPs to subsidize companies that deliver content and services over the Internet.

Reality: Nobody is getting a break here. On the Internet, everyone pays their way by contracting with some ISP to "get connected." Big users -- typically corporate providers of online content or services -- pay much more than individual subscribers. ISPs then negotiate with other carriers, including "backbone" providers, to route traffic to and from the rest of the Internet.

As a result, every bit of data that ISPs carry is traffic they have previously agreed to carry in contracts negotiated with their subscribers and other carriers. No ISP is forced to carry traffic in excess of what it has already committed to do by contract, and no online content provider gets a free ride. If anything, the new FCC rules prevent subsidization, by ensuring that ISPs cannot demand to "take a cut" whenever some other company wants to do business with the ISPs' subscribers.

Myth: The FCC rules will prevent ISPs from properly maintaining their networks as needed to adjust to technological challenges.

Reality: The FCC rules are flexible enough to permit ISPs to reasonably respond to technical challenges. The rules only bar "unreasonable" discrimination, and they contain an open-ended exception for reasonable network management. In addition, the FCC's order specifically notes that ISP actions to address congestion and bandwidth challenges directly, by charging for or reining in high-volume usage and users, does not violate the rules.

Myth: The FCC rules will discourage investment in broadband networks.

Reality: This myth is rooted in the political rhetoric that any kind of regulation automatically blunts investment, but it is simply not true. The Internet is now central to our lives and demand for it continues to grow, precisely because it offers an open platform for a constantly changing array of innovative new services. ISPs that don't invest in hopes of capturing and controlling that constantly innovating market are only hurting themselves. Moreover, the FCC rules give ISPs flexibility to offer other services in parallel with Internet access service -- and thus to enjoy multiple revenue streams from their investments in their broadband networks.