WASHINGTON — Should the company that supplies your Internet access be allowed to cut deals with online services such as Netflix, Amazon or YouTube to move their content faster?
The Federal Communications Commission is tackling that question this fall after the public submitted a record 3.7 million comments on the subject — more than double the number filed with the regulatory agency after Janet Jackson’s infamous wardrobe malfunction at the 2004 Super Bowl.
The FCC’s chairman, former industry lobbyist and venture capitalist Tom Wheeler, says financial arrangements between broadband providers and content sites might be OK so long as the agreement is “commercially reasonable” and companies disclose publicly how they prioritize Internet traffic.
But not everyone agrees, with Netflix and much of the public accusing the FCC of handing the Internet over to the highest bidders.
“If Comcast and Time Warner – who already have a virtual monopoly on Internet service – have the ability to manage and manipulate Internet speeds and access to benefit their own bottom line, they will be able to filter content and alter the user experience,” said Barbara Ann Luttrell, 26, of Atlanta, in a recent submission to the FCC.
The major cable and telecommunications companies that supply most of the nation’s broadband say blocking or discriminating against content would never be in their best interest commercially. But, some industry officials say, data hogs like Netflix might need to bear some of the cost of handling heavy traffic.
“Why should everyone subsidize fans of `House of Cards?'” asked Michael Powell of the National Cable and Telecommunications Association, a lobbying arm of the cable industry, referring to the popular Netflix series.
The question is how far the government should go to protect “net neutrality” – the popular idea that Internet service providers shouldn’t manipulate or slow data moving across its networks. As long as content isn’t against the law, such as child pornography or pirated music, a file or video posted on one site will load generally at the same speed as a similarly sized file or video on another site.
President Barack Obama in 2008 ran on a campaign pledge to protect net neutrality, and in 2010, the FCC issued a rule prohibiting providers from blocking or discriminating against content.
But in January, a federal appeals court agreed with Verizon that the FCC did not technically have the authority to tell broadband providers how to manage their networks. The decision overturned important parts of the 2010 rule.
By then, the FCC had a new chairman in Wheeler, who in the early 1980s led the National Cable and Telecommunications Association, and later the Cellular Telecommunications and Internet Association. Obama called him the “Bo Jackson of telecom.”
Instead of appealing the court’s decision, regarded as a long shot, Wheeler proposed in May to prohibit Internet service providers from blocking content by applying the Telecommunications Act of 1996.
But Wheeler’s plan also left open the possibility that broadband providers could charge Netflix and other content companies for faster, guaranteed access. Wheeler said he was trying to follow guidelines suggested by the court, and invited the public to comment on whether these paid arrangements should be banned altogether.
The proposal received little attention until June when following a satire sketch by HBO comedian John Oliver, the FCC system temporarily shut down due to heavy traffic. Since then, public response continued to rise, with Netflix urging the public to fight against “paid prioritization.” The FCC comment period ended Sept. 15 with the record response.
Wheeler has defended his approach as still upholding the basic principal of net neutrality because providers wouldn’t be allowed to slow down other content. He says the FCC could step in if broadband providers act unreasonably, such as giving priority access to a subsidiary.
“If someone acts to divide the Internet between `haves’ and `have-nots,’ we will use every power at our disposal to stop it,” he told industry officials at an annual convention this year sponsored by the NCTA.
But doesn’t allowing Comcast, AT&T or Verizon to prioritize online content – essentially creating a “fast lane” – put the remaining Internet traffic in a “slow lane” by default?
Many of the 3.7 million public comments filed with the FCC said it does, and suggested that the government regulate broadband providers just like phone companies.
Some lawmakers, including Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., say Congress should settle the issue altogether by outright banning paid agreements between broadband providers and content providers.
Broadband providers have been lobbying Congress aggressively to avoid being designated as a “common carrier” under communications law. This would subject broadband services to tougher regulations. According to the Sunlight Foundation, the organizations most active in filing lobbying reports on net neutrality in recent years are Verizon, AT&T, Comcast, and Wheeler’s former employer, the NCTA.
The White House has said Obama backs Wheeler’s effort to uphold an open Internet, but hasn’t said how that should work, leaving a big question mark when it comes to whether the president has fulfilled that early campaign promise. In responding to an online petition on net neutrality, the White House noted that the FCC is an independent agency, making the point that Obama can’t direct the FCC to do anything, even if he wanted to.
There is no deadline for the FCC to pass a new rule, and deliberations at the agency could continue into next year.