FCC Moving Forward on "Net Neutrality" Rule That Would Regulate "Fast Lanes"

The Federal Communications Commission (FCC) voted 3-2 along party lines today for a proposal submitted by its chairman, Democratic appointee Tom Wheeler, which would regulate how Internet service providers can charge for "fast lanes." USA Today explains:

Throughout its internal deliberations, the hot button for the agency remained whether its new rules should allow fast lanes to consumers' homes, the so-called "last mile," that content providers such as Netflix can buy as long as the same opportunities are available to others on "commercially reasonable" terms.

As proposed, the rules allow for consideration of paid prioritization of data on the Internet. But, Wheeler says, "there is one Internet. Not a fast Internet, not a slow Internet, one Internet." The proposed rules follow the Court of Appeals for the District of Columbia striking down most of the FCC's net neutrality rules, the second time a court had done so.

One of the Republican commissioners, Michael O'Reilly, said he opposed the proposed rule because it led down the "slippery slope of regulation." The other Republican commissioner, Ajit Pai, meanwhile, said the decision should not be up to the FCC:

"Nothing less than the future of the Internet depends on how we resolve this disagreement," said Commissioner Ajit Pai, the agency's senior Republican. "A dispute this fundamental is not for us, five unelected individuals, to decide," he said, adding that it should be the job of Congress. As Peter Suderman explained earlier today, the broader argument over "net neutrality" is whether the government would treat Internet access as an information service or a telecommunications service, the latter opening it to far more regulation. While Wheeler insisted his rule would not threaten an "open Internet," saying there was only "one Internet," Suderman explains that the idea of net "neutrality" is misleading:

The Internet has never really been as equal as the activists suggest. As a National Journal report noted earlier this week, big content providers with big data transmission needs have always wrangled service deals with big Internet carriers; billions of dollars are already tied up in these sorts of bargains. Not only have these deals not ruined the Internet experience for the average person, they've enhanced it, allowing traffic-intensive services like streaming video sites to purchase enhanced capabilities. Those deals have made it possible for startups to handle massive traffic spikes without crashing. And the money involved has helped expand, upgrade, and maintain the Internet's permanent infrastructure overall.

Under Title II, some of that money would probably go away. And so would the infrastructure improvements that go with it. A group of large ISPs wrote to the FCC this week to warn that, if the agency moves forward with reclassification, they would spend less money to build out their networks. This is the industry's position, so some skepticism is in order. But it's not an entirely crazy notion. Transform the Internet into quasi-public infrastructure, and it's likely to start taking on, at least to some degree, a few of the characteristics of public infrastructure—which, I think it's safe to say, is not known for its propensity toward innovation and upgrades. The FCC's proposed rule now has 120 days for public comment.