This article originally appeared in Rethink Research's Wireless Watch
US FCC chairman Tom Wheeler may have been put out when president Barack Obama pre-empted him last fall, and called for far stricter rules on net neutrality. But he is now pushing for an even stronger approach than even Obama seemed to envisage, which he described as the “strongest open internet protections ever proposed by the FCC”.
The plan would include reclassifying internet services providers under Title II of the Telecoms Act, which would effectively prevent them discriminating against the kind of traffic their networks are supporting, though Wheeler promises a modernized interpretation of Title II to preserve incentives to invest in broadband networks.
And as the wireless operators have feared, they would receive few concessions for the capacity challenges of their radio-based networks, and would lose much of the ‘special treatment’ they gained in the last neutrality rulings (overturned after legal challenges, and so opening the way to this new round of debates).
The FCC’s proposals, which were widely leaked last week and have now been revealed in full, cover wireline and wireless broadband networks. If the framework is enacted, it would ban throttling, blocking and paid prioritization by ISPs, and the FCC would gain powers to police interconnection agreements, like the one under which Netflix paid for more direct access to Comcast’s network. The FCC will vote on the proposals on February 26.
The main loophole is that the proposals do not block zero-rating, the practice of exempting some apps or types of traffic from counting towards a user’s monthly data allowance. The use of that technique could be extended to favor certain content providers, but the regulator decided the issue was not a significant one in the US – and it has been valuable for US firms like Facebook to reach poor communities in emerging economies.
But some critics believe providers will turn these zero rating deals effectively into the fast lanes which the FCC wants to close down. Even web father Tim Berners-Lee weighed in, saying there was a danger of “positive discrimination” and excessive power for internet providers.
Apart from this one area, however, Wheeler wants to draw a line under the thorny neutrality debate at last (unlikely, since some telcos are already rumbling about lawsuits), and to establish the principle, once and for all, that all web traffic must be treated equally – however hard that may be for wireless carriers with their capacity constrained networks being flooded by YouTube video.
These providers, backed by industry associations like the CTIA and GSMA, will see the biggest change compared to the previous attempt at neutrality regulations, in which mobile networks were treated as a special case with more latitude to prioritize different types of traffic in order to preserve an acceptable user experience for all.
That will form the heart of arguments from the mobile community against Wheeler’s ideas – that he will force US consumers to endure sub-standard mobile quality of service, and also deter the cellcos from investing further in their networks, because he will have destroyed the profit case.
It remains to be seen how far traffic shaping will be counted as illegal prioritization, but as Paul de Sa, an analyst at Sanford Bernstein, wrote in a client note: “Although this makes sense given the realities of broadband usage, it presents a genuinely difficult challenge in defining ‘reasonable network management’.”
Cablecos will not be quite as downcast as their mobile peers – the FCC stopped short of pricing controls, or of forcing the MSOs to share their home broadband lines with competitors, and the mobile operators’ increased need for raw capacity could create a lucrative new set of WiFi offload deals centered on the huge Cable WiFi build-outs.
Wheeler outlined his plans in an op-ed piece for Wired. He wrote: “To preserve incentives for broadband operators to invest in their networks, my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks. For example, there will be no rate regulation, no tariffs, no last-mile unbundling. Over the last 21 years, the wireless industry has invested almost $300bn under similar rules, proving that modernized Title II regulation can encourage investment and competition.
“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,” he added.