The Parameters of the New “Not” Neutrality Take Shape

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The next step in the transition of net neutrality to something else will be taken on May 15, when the Federal Communications Commission (FCC) votes on a draft proposal of new rules. Passage would begin the process of creating permanent rules.

If early reports are accurate, the draft rules will codify the reality that net neutrality rules, depending on viewers’ perspectives, are dead. They have been watered down to the extent that they no longer effectively fulfill the initial goal or have evolved to set more reasonable ground rules for the commercial landscape that the rules were designed to manage.

No hard information is available about what the FCC will put on the table. It is possible that the leaks, which reports traced back to The Wall Street Journal and Reuters, are trial balloons let loose in Washington, DC’s byzantine way of doing things to test the response and possibly adjust the proposal before it is officially released.

Essentially, the net neutrality rules were intended to create a level playing field among users of the Internet. The biggest content provider would have been given the same “last mile” access to an ISP’s subscribers as a one-person startup. The first domino in fundamentally changing the rules was pushed over when the United States Court of Appeals for the District of Columbia Circuit found that the FCC erred in how it characterized broadband. The categorization it used made it impossible to justify the net neutrality rules as they existed. Net neutrality was neutralized, so to speak.

Time Magazine carried word that the FCC, at least at this point, is moving away from net neutrality’s core principle:

Under the FCC’s new plan, Internet service providers like Comcast and AT&T “would be required to offer a baseline level of service to their subscribers,” according to an FCC spokesperson. The companies would also be prohibited from blocking or discriminating against online content, but they would be allowed to strike special deals with Internet companies like Netflix or Skype for preferential treatment, as long as they acted in a “commercially reasonable manner subject to review on a case-by-case basis.”

Net neutrality advocates see the handwriting on the wall. Liberal site Mother Jones ran a short piece on the rumors under an image of a headstone with “net neutrality” written above the dates “1969-2014.” The conclusion is pretty clear: A new version of Facebook or YouTube, which were born in the day when they enjoyed that equality with other services, would face even longer odds than it would under the old net neutrality rules. Kevin Drum sums it up:

So Google and Microsoft and Netflix and other large, well-capitalized incumbents will pay for speedy service. Smaller companies that can’t—or that ISPs just aren’t interested in dealing with—will get whatever plodding service is left for everyone else. ISPs won’t be allowed to deliberately slow down traffic from specific sites, but that’s about all that’s left of net neutrality. Once you’ve approved the notion of two-tier service, it hardly matters whether you’re speeding up some of the sites or slowing down others.

Even if Chairman Tom Wheeler’s FCC wants to maintain the old vision of net neutrality, the options are limited. The most obvious step would be an appeal of the DC court’s decision, but that was given poor odds by experts. Legal experts do agree for the most part that the court decided correctly given the facts.

An attempt could be made to reclassify broadband under a regulatory regime that provides a stronger basis for “true” net neutrality. Apparently, that option was bypassed. That makes sense: Wheeler, who took over for Julius Genachowski in November, was President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). That part of his background suggests that he likely is fine with a landscape in which the incumbents have a leg up. Wheeler, like the president he serves, is a pro-business centrist.

As the Mother Jones artwork suggests, the pure net neutrality folks are unhappy, but unsurprised, and seem to be willing to accept the inevitable. That may be the information the FCC was seeking if the information disclosed during the past few days was indeed a trial balloon.