Three simple rules*
The Open Internet order consists of three "bright-line rules" that both traditional ISPs (like Comcast) and mobile broadband providers (like T-Mobile) must adhere to: no blocking, no throttling and no paid prioritization. The "no blocking" rule actually refers to two things. First, ISPs can't prevent access to any lawful content, applications or services. Second, they can't stop any device deemed "non harmful" from connecting to their network. The "no throttling" rule means that ISPs can't slow down specific sites, applications or services. Finally, "no paid prioritization" means that ISPs can't take money from content providers for preferential speeds -- often referred to as internet fast lanes.
At its core, then, the order is pretty simple. But it's 313 pages for a reason: How legislation like this is interpreted is very important, and there needs to be as few gray areas as possible. It's in this explanation and expansion that any order succeeds or fails in its goals. The FCC has got things right for the most part, but the Open Internet order is not without its problems. Let's break them down:
The order says that the "no blocking" rule only applies to "transmissions of lawful content and does not prevent or restrict a broadband provider from refusing to transmit unlawful material, such as child pornography or copyright-infringing materials." It also does not prohibit "reasonable efforts by a provider of broadband internet access service to address copyright infringement or other unlawful activity." What it doesn't do is put in place a framework for deciding what is and isn't lawful. By not doing so, it gives the ISPs the right to act as judge and executioner, letting them block a website or have knee-jerk reactions to copyright complaint, all without the need for a court order.
Guilty until proven innocent.
To be clear, there's nothing stopping an ISP from doing that now, but if the point of the order is foster an open internet, then much more could have be done here. Electronic Frontier Foundation (EFF), a nonprofit organization that tasks itself with "defending civil liberties in the digital world," believes the decision to block content should only be taken by the courts. Right now, it's a case of guilty until proven innocent. Kit Walsh, staff attorney at EFF, explains that "if the provider engages in a blocking or throttling process and claims that the purpose of it is to prevent copyright infringement or other unlawful content, then the burden falls back on the public to detect that process and challenge it on a case-by-case basis. We're no better off than we were before."
Question marks also pervade the "no throttling" provision. The FCC is effectively only regulating "the last mile" -- the bit that connects your laptop, smartphone and other devices to the internet -- but what happens before that mile isn't changing. The "fast lane" debate largely came to fruition because of Netflix's very public disputes with ISPs last year. As a result of those disputes, Netflix saw its service slow before it struck interconnection deals with Comcast, Verizon, Time Warner and AT&T to bypass third parties and connect directly to their servers, ensuring a smooth service for its users. The Open Internet order does not address these kinds of deals.
Netflix's diagram explaining the Comcast interconnection deal, prior to striking a deal with AT&T.
Of course, ISPs won't be allowed to serve you Netflix movies at an artificially slower rate than other traffic, regardless of whether or not an interconnection deal is in place. That's firmly outlawed by the "no throttling" rule. But they will still be free to pursue interconnection after the order becomes law. It's worth noting at this point that often interconnection deals are simply commercial arrangements and don't affect the open internet.
There's also the matter of "traffic management." Many ISPs were concerned the throttling part of the order would affect their ability to manage traffic on their networks, but the FCC doesn't go too far in changing the status quo. An ISP can't discriminate against sites or users unnecessarily, but, so long as it has a technically sound reason, (network overcapacity, for example), it can still manage traffic. ISPs will need to be transparent with the FCC (and by extension, their customers) regarding their traffic management practices, though.
No paid prioritization
You could be forgiven for believing there's a conflict here between the "no throttling" and "no paid prioritization" sections of the order. Companies can't pay for preferential treatment, sure, but they may be required to pay for "interconnections" that allow them to serve video at a decent rate. Netflix, as an example, argued the exorbitant fee it was charged for interconnection was tantamount to paying a "toll to the powerful ISPs to protect our consumer experience." ISPs claimed they were merely charging the company for a service. It's a muddy area, for sure. The FCC says it'll deal with complaints on a case-by-case basis, admitting that it doesn't really know how to proceed yet. Whether what happened last year to Netflix was fair will no doubt be subject to much discussion.
The other problems with the order are pretty much everything else about the internet that it doesn't address. There is a lot, it seems, that the FCC doesn't understand about the internet. There are gray areas, things like "zero rating" deals that give users access to services outside of their contracted data allowance. This is especially relevant in the mobile space (hello, T-Mobile), and pretty much the antithesis of a free and open internet.
Zero rating is pretty much the antithesis of net neutrality.
The commission does acknowledge these deals can distort competition. How many T-Mobile customers will want to try out a new music service like Tidal when they can use established brands' apps free from data charges? Fast lanes may have been outlawed, but if every other road has a fee, you're probably going to take the toll-free route. Indeed, it could be argued that zero rating is more harmful to the competitive landscape of the internet than fast lanes, but the FCC does not legislate against such deals, instead hiding behind dealing with complaints on a case-by-case basis. "[Zero rating] certainly does pose some of the same risks as paid prioritization," explains Walsh. While there are some appeals to zero rating, like providing the public with free access to knowledge like Wikipedia, he argues, "We would have liked to see a less ambivalent approach in the FCC's order."
It's these "case-by-case" decisions that are perhaps the biggest problem with the Open Internet order. The FCC is essentially avoiding complex questions about the future of the internet because it doesn't have the answers yet. It's opening itself up to preside over dispute after dispute, and while some will be minor, others will have major ramifications on the very fabric of the internet. Comcast, Verizon, Google, Amazon and even Netflix are huge companies with the in-house expertise and/or financial power to argue their cases with the FCC. What hope does a smaller company have in raising and defending disputes against such giants?
The case-by-case system favors big companies.
"It's very much like litigation. It's very expensive. It's very specialized," says Walsh. "The frame that this is about ISPs versus big, incumbent internet companies misses the fact that it's the new entrants, the startups, individuals and non-commercial users who are the most at-risk if we don't have a neutral internet, and similarly are the least able to engage with the case-by-case adjudication mechanisms that the FCC is using for a variety of issues." He believes that "the repeat players, the ISPs, are going to be at an advantage in adjudicating such things on a case-by-case basis."
It might seem like we're being negative. There is so much that the Open Internet order gets right. Its core principles have left even EFF with a smile on its face. It lays the groundwork for the internet to remain the competitive, free and open place, which is something that will benefit companies and consumers, but it undeniably leaves many questions unanswered. The FCC's work is nowhere near done, though. It's indicated that it's looking into the missing pieces of the order, and there's at least some hope that we'll get additional clear, bright-line rules as it investigates and understands the complexities of zero rating, interconnection and other areas.
"The best approach is to watch, learn and act as required, but not intervene now, especially not with prescriptive rules," says the FCC, speaking specifically about interconnection. The process of hearing cases, it says, "is sure to bring greater understanding" on the issues it's not certain on. Even if we don't get more bright-line rules, with each case that's heard precedent will be set that makes the existing rules clearer. Like an FCC-specific, open-internet version of case law. The only issue with that is the future of the internet remains clouded, to be decided across tens if not hundreds of hyper-specific cases. We're off to a great start, for sure, but the battle for true net neutrality is only just getting started. And it'll rage on for years to come.
[Image credits: Netflix (interconnection diagram); Mark Wilson/Getty Images (Tom Wheeler holding hands)]