Federal Communications Commission Chairman Julius Genachowski layered compromise upon compromise to get the commission's approval Tuesday for a Net neutrality proposal that at least some major Internet and telecommunications companies can live with. Those compromises disappointed advocates of a strong rule, and they weren't enough to placate Republicans who oppose the very idea of regulating broadband providers. Nevertheless, the result is both workable and necessary.
At issue is the control broadband providers such as AT&T and Comcast can wield over the content, services and applications that are available online. In most markets, consumers have at best two options for broadband service: DSL from the local phone company or a cable modem from the local cable TV operator. Wireless networks may provide a real alternative in the future, but for now there is not enough competition in broadband to keep phone and cable companies from abusing their position as gatekeepers between the Internet and the home.
In particular, the rapid increase in traffic online gives broadband providers the incentive to make Web-based companies pay to improve their access to Internet users. Those who argue that there's no reason to impose rules now need to pull their heads out of the sand.
The FCC has tried for the better part of a decade to preserve the freedom that's been a hallmark of the Internet, but a court ruling in April threw out the commission's last attempt to stop broadband providers from discriminating unreasonably against competing online video-on-demand services. Wednesday's order would reestablish the rule against broadband providers blocking lawful content, applications, services and devices. It would also bar unreasonable discrimination against lawful forms of traffic online and require broadband providers to disclose how they manage their networks.
The first compromise Genachowski made was to find new authority for the FCC within existing law to enforce Net neutrality rules. Although it would be better for Congress to give the commission explicit authority to regulate broadband providers, the commission's action Tuesday is better than Genachowski's previous proposal to subject broadband to the heavy regulatory regime created for last century's telephone service.
A second compromise was to write the order in a way that discourages but does not ban broadband providers from charging websites and services for priority delivery — a fast lane to their customers, so to speak. This is a critical yet difficult issue. Broadband providers must not be allowed to pick winners and losers by forcing companies to pay a high price to reach their subscribers, or by making prioritization available to some content providers but not others. At the same time, they should have the ability to develop new business models that encourage more investment in their networks without undermining the free and open Net.
The order adopted Tuesday appears to strike a sensible balance, deterring broadband providers from prioritizing traffic within their Internet services but allowing them to do so elsewhere in their networks. The risk is that broadband providers will try to move consumers away from open Internet services to ones that feature prioritized offerings from deep-pocketed partners. The order tries to give the commission the means to stop that kind of circumvention; it remains to be seen whether they'll work.
A third compromise is to exempt wireless broadband networks from most of the neutrality rules, a realistic concession to the reduced capacity of those networks compared with their wired counterparts. They would be barred from blocking any legal website or any applications that compete with their phone or video-telephony services. To guard against abuse, the order also calls on the commission to monitor closely how wireless broadband operators manage their mobile networks, just as it will scrutinize how wired broadband providers introduce prioritized services.
Many of the most vocal advocates of Net neutrality on the left blasted the FCC's order as weak and riddled with loopholes, while opponents on the right say it puts Washington into a market that has until now been governed by consensus among the participants. Neither of those complaints passes the reasonableness test. Neutrality rules will fail if they prevent network operators from innovating, or if they're premised on the dangerous assumption that broadband connections just naturally keep up with the growing demand for capacity. At the same time, if the FCC reversed its stance and declared that there was no need for open Internet rules to guide networks, online businesses and investors, it would invite broadband providers to interfere with traffic in ways that they haven't yet dared to.
It's worth remembering that the new rules apply only to how data are transported, not what's in that data. The point is to keep the content and services that are the essence of the Net flowing freely. It makes sense for the FCC to proceed carefully, laying out a minimal number of ground rules and watching how the market reacts. That's what Genachowski's many compromises appear to have accomplished.