Matt Rourke/AP

Net neutrality undermined by proposed FCC rules, say free access groups

Broadband companies might be able to deal faster traffic for companies that can afford it on 'case-by-case' basis

Internet Service Providers (ISPs) could soon be allowed to charge companies like Netflix or Google for a “fast lane” to consumers under proposals from the Federal Communications Commission (FCC) that seemingly undermine the agency’s previous support of “net neutrality” – the principle that all online content should have equal access to consumers.

The proposed rules, which FCC chairman Tom Wheeler circulated among the agency’s five commissioners on Thursday, would allow ISPs to negotiate agreements with content providers on the so-called "last mile" of delivery to users, so long as these deals are made in a “commercially reasonable manner subject to review on a case-by-case basis,” an FCC official told Al Jazeera. The commission stressed that it did not amount to a reversal of its previous stance in regards to net neutrality.

If approved, the new rules could radically alter the flow of Internet traffic and the landscape for doing business online. ISPs would be able to offer a large company like Google faster content delivery to its users at a premium, while smaller companies that cannot afford to purchase faster service would be at a disadvantage.

Net neutrality advocates have argued that equal access to the Internet is necessary to facilitate a competitive market, encouraging the investment and innovation that has driven tech sector growth for years. Without the principle of net neutrality, which has been in place for over a decade, start-ups like Facebook and Twitter might never have gotten off the ground, they say.

“The FCC is inviting ISPs to pick winners and losers online,” said Michael Weinberg, vice president at Washington-based advocacy group Public Knowledge, in a statement. “This is not net neutrality. This standard allows ISPs to impose a new price of entry for innovation on the Internet.”

The FCC official said the new rules propose "that broadband providers would be required to offer a baseline level of service to their subscribers, along with the ability to enter into individual negotiations with content providers." The agency will vote to formalize the proposal in a May 15 vote.

It is not clear what would constitute a “commercially reasonable” agreement, nor what that “baseline level of service” would be. The spokesman said those standards, as well as what the procedure would be in the event of a dispute, would be clarified once the FCC has collected public comment on the new rules.

The FCC's proposal comes three months after a federal appeals court struck down the agency’s 2010 Open Internet Order, which safeguarded net neutrality. The judge threw out the FCC's authority to enforce the anti-blocking and anti-discrimination rules that underpin net neutrality on grounds that the FCC had previously classified broadband as an information service rather than as a telecommunications service.

Though the ruling granted the FCC greater authority to regulate broadband markets, the case was seen as a victory for telecommunications giants like Comcast and Verizon who argue they have built and developed massive information pipelines and should therefore have the right to control traffic as they see fit.

But instead of seeking to reclassify broadband as a telecommunications service – squarely placing it under the agency's authority – the FCC took what net-neutrality advocates say was a politically safe route by opting for a “case-by-case” policy that will not put them at odds with the powerful telecoms giants.

“The FCC had an opportunity to reverse its failures and pursue real net neutrality by reclassifying broadband under the law,” said Craig Aaron, President and CEO of advocacy group Free Press. “Instead, in a moment of political cowardice and extreme shortsightedness, it has chosen this convoluted path that won’t protect Internet users.”

A spokesman for Netflix, which streams movies and television shows to its subscribers, told Reuters the proposed approach was "the fastest lane to punish customers and Internet innovators." Under the proposal, Netflix could theoretically see slower speeds if a broadband company decided to prioritize traffic to its own competing video-on-demand service.

In a statement on Wednesday night after the Wall Street Journal broke news of the proposal, FCC chairman Wheeler, a former cable industry lobbyist, dismissed such criticism as “flat-out wrong.”

He said the proposal “will restore the concepts of net neutrality consistent with the court’s ruling in January. There is no ‘turnaround in policy.’ The same rules will apply to all Internet content."

“As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted,” he added.

Most major broadband companies have said they would not make deals that restrict users’ access to online content, whatever rules the FCC formally proposes in May. The new rules being discussed would also only regulate deals between companies on connections during the so-called last mile – the last leg of the network that reaches consumers. Deals on connections that happen before they reach the consumer, called interconnection agreements, are outside of the proposed regulatory scope.

And despite the opposition from some advocates, Internet policy experts display a wide range of arguments for and against net neutrality.

In an op-ed for Al Jazeera, Richard John, the author of Network Nation: Inventing American Telecommunications, said the uproar over net neutrality is predicated largely on speculation. "Differential pricing could conceivably cost Google, Netflix and even Apple a bundle, an outcome that might well spur innovation in ways that few today can predict," John wrote.

In an interview after the January appeals court ruling, Jim Speta, a professor at Northwestern University School of Law who specializes in telecommunications law, agreed. "My own view is that the Open Internet rules are not necessary to maintain a broadly open and competitive Internet ecosystem, but that's where the essential fight is in the policy space."

With wire services

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