When U.S. Court of Appeals for the District of Columbia Circuit effectively struck down net neutrality in the US at beginning of this year, it was generally assumed that the FCC would step in, redefine the term ‘common carriers’ to include broadband providers (the case rested on the fact that the 2010 FCC Open Internet Order applies to ‘common carriers’ such as regular telecoms companies, and the ruling decided that the term does not apply to broadband providers), and net neutrality would be saved.
Unfortunately, instead of saving net neutrality (the idea that all internet traffic should be treated equally), the FCC has chosen to propose new rules that would do the exact opposite, allowing companies such as Disney, Google or Netflix to pay internet backbone providers for ‘fast lanes’ to deliver their content faster to their customers.
A 60-day consultation period (followed by a 60-day decision-making period) is underway, but yesterday Congressional Democrats stepped into the fray and introduced legislation intended to ban such internet prioritization (fast lane) deals.
The Online Competition and Consumer Choice Act would require the FCC to ‘prohibit a broadband provider from entering into an agreement with an edge provider under which the broadband provider agrees, for consideration, in transmitting network traffic over the broadband Internet access service of an end user, to give preferential treatment or priority to the traffic of such edge provider over the traffic of other edge providers.’ It would also prohibit a broadband provider from giving preferential treatment to its own services.
Although it does seem a little odd to require the FCC to ban paid prioritization, rather than just banning prioritization itself, a spokesman for the Democrats explained that ‘banning paid prioritization falls under the FCC’s jurisdiction. We believe they have the authority to do so, and so this legislation would direct them to use that authority to ban paid prioritization, ensuring the Internet stays free and open to all.’
Interestingly, because the Bill does not specify under what authority the FCC could issue the new rules, it may force the FCC to redefine ‘common carriers’ to include broadband providers, just in order to comply with the legislation (although AT&T argues that any such move would wreak havoc on the Internet).
Unfortunately, the legislation only applies to last-mile Internet traffic, so deals such that between (a reluctant) Netflix and Comcast will be unaffected. It does however directly oppose the Republican sponsored bill ‘To amend the Communications Act of 1934 to limit the authority of the Federal Communications Commission over providers of broadband Internet access service.’
Also up for grabs is the question of whether the 2010 ruling and FCC proposals apply to mobile carriers in addition to home broadband providers.
In the meantime, the FCC consultation process continues, although FCC chairman Tom Wheeler has said that he supports paid prioritization (while bizarrely and oxymoronically claiming that he wants to ‘ensure the Internet remains open and prevent any practices that threaten it’).