Net neutrality is the foundation of a free and open Internet, yet implementing it correctly and legally has been a serious challenge.

The idea of net neutrality is simple: An Internet service provider (ISP) has to treat all data equally, neither boosting the performance of some streams nor degrading the speed of others. It can’t create tiers of service in which some sites perform better than others, nor can it block non-criminal sites or discriminate against specific hardware or applications.

Let’s imagine a worst-case scenario: Microsoft buys Comcast. They slow or even block access to Google in order to encourage customers to use Bing. They degrade their users’ experience of Netflix in order to boost their own video-on-demand service. Finally, they begin filtering sites that criticize Microsoft or Comcast in any way.

We are not there yet. We are not even really on our way there. We are, however, feeling some early rumblings about what the Internet could be like without commonsense protections in place, and we need to start looking to a future in which the open Internet is protected.


The Desirable and the Possible

There is a line between what is desirable and what is possible within the limits of our government. Where legislators are failing, the FCC (Federal Communications Commission) is attempting to step in, and in doing so, it certainly appears to be exceeding its authority.

The current problem is “paid prioritization.” The Internet service providers — represented in the public imagination by widely hated companies such as Comcast and Verizon — want to create tiers of service. This allows them to “throttle” Internet speeds for high-bandwidth users. Throttling slows down the flow of data between a service and a user. In order to remove those limits so the data can flow at the highest possible speed, the service would have to pay.

The most obvious example is Netflix. The popular video-streaming service consumes approximately 34% of all Internet bandwidth in North America. By comparison, superstore Amazon (which also streams music and movies) accounts for less than 3% of all bandwidth.

Last year, customers who watched Netflix through ISPs such as Comcast or Verizon saw their Internet speeds throttled, leading to downgraded video quality, buffering delays and interrupted service.

This issue is considerably more complex and subtle than the general public realizes, and we don’t need to wade into technical details to understand the problem. The important takeaway is that Comcast became the first consumer ISP to extract (and, some would say, extort) fees by deliberately inflicting congestion on a targeted service.

Comcast says it needs to be able to make these deals so it can upgrade equipment to handle increased demand by users of Netflix.

But Netflix isn’t Comcast’s customer. Netflix isn’t binge-watching House of Cards. Individual users are the customers, and they’ve already paid for high-speed access. Indeed, when many consumers saw their speeds degraded, they were persuaded to upgrade to higher-speed data plans. Comcast made untold millions by fabricating a problem and then charging both customers and Netflix to “fix” it.

Given the market dominance of cable/ISPs, monopolistic in most areas, this kind of bad behavior is driving a renewed effort to pass net-neutrality regulations, and the companies howling the loudest have only themselves to blame. They’ve shown us that, in this case, market forces alone cannot protect consumers from the predatory behavior of de facto monopolies.


Enter the FCC

The FCC attempted to regulate the Internet using some of its basic powers in 2010, with the Open Internet Order.  In January of this year, a U.S. district court of appeals slapped it down for overstepping its authority.

If, however, the FCC could find a way to reclassify the Internet from a “Title I” information service to a “Title II” telecommunications service under U.S. law, the ISPs would become a “common carrier.” A common carrier functions under a regulatory authority and cannot discriminate against different kinds of data.

In announcing the new rules, FCC Chairman Tom Wheeler said:

“These enforceable, bright-line rules will ban paid prioritization and the blocking and throttling of lawful content and services. I propose to fully apply — for the first time ever — those bright-line rules to mobile broadband. My proposal assures the rights of Internet users to go where they want, when they want and the rights of innovators to introduce new products without asking anyone’s permission.”

Bravo. These are wonderful things. The Internet needs them.

But do Wheeler and his committee have the power to reclassify the Internet from an information service to a telecommunications service?

That’s what the courts will have to decide, but consider that the 1996 Telecommunications Act defines an information service as something “generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications.”

That’s the Internet in a nutshell. The FCC can’t wish away this definition just because passing new telecom legislation is difficult.

Furthermore, the existing legislation is riddled with rules and regulations that won’t work for the Internet. To surmount this problem, the FCC is promising “forbearance,” which means it has the discretion to ignore portions of the act that don’t comport with the practical reality of modern information technology.

Conservatives are leery of placing that much power in the hands of the FCC, and rightly so.


Back to Court

This leaves us with a redefinition of the Internet in direct contradiction of the defining law on the issue and the requirement to enforce or ignore portions of the act left to the discretion of the FCC. Clearly, current telecom law is not capable of stretching to encompass the demands of the Internet, and thus a new act is needed.

Now, let’s have a show of hands for everyone who thinks this sclerotic Congress and our hostile executive branch are capable of creating such a law that all parties would find acceptable.

So we’re stuck. Net neutrality is an important part of preserving the open Internet, but the only way we can get net neutrality is by hacking a shortcut through existing legislation. The new rules will, of course, be challenged in court, and then we’ll learn just how much leeway the judiciary thinks the FCC should have.

At the present time, we are being asked to choose between waiting for movies to buffer because two megacorporations haven’t decided how much wealth to transfer between them and turning vast, new discretionary powers over to a handful of bureaucrats.

The FCC released the full 400-page report last Thursday. The actual “rules” comprise only eight pages of revisions, beginning on page 283 of the report. The rest is background, introductions, definitions, dissents, legal precedent and defenses for the FCC actions. The rules themselves appear fairly straightforward: no blocking, no throttling, no paid prioritization. The devil, however, is in details, and the problems surrounding reclassification and forbearance remain.

A future without an open Internet could get ugly, and our leaders need to get to work crafting reasonable legislation that can ensure growth, protect consumers and minimize government interference. The problem, however, is not so urgent that we can’t pause and take the time to address it correctly.


Thomas L. McDonald has been a technology journalist for 25 years. He blogs at GodandtheMachine.