FCC Commissioner Helps Your World Mislead About Net Neutrality

On today's edition of Fox News' Your World, guest host Brian Sullivan had on Federal Communications Commission member Robert McDowell to discuss the FCC vote to implement a form of net neutrality. Sullivan pointed out that it was" a partisan vote, right along party lines," and that McDowell was “one of the two commissioners who voted against the move, fearing what it might bring next.”

The two teamed up to misinform about one aspect of the new rules. Sullivan asked, “Building out these networks is massively expensive. So what's wrong with those service providers charging heavier users more? I mean, UPS and FedEx charge you more if you want a package overnight or three days or if it's bigger. What's wrong with doing the Internet and its costs the same way we do package delivery?” McDowell responding by invoking “pricing freedom”: “If an Internet service provider wants to cater to a specific market segment that might have certain quality of service demands or speed demands or the size of the pipe, how much data you want delivered over the pipe – those kinds of demands – they should be able to have pricing freedom in order to compensate them for the capital costs that they have to expend in order to deliver those services to consumers. So what this does is it actually calls into question whether or not there will be pricing freedom in order for this to happen.”

In fact, net neutrality does not prohibit ISPs from charging customers more for a bigger “pipe,” or purchasing more and/or faster bandwidth. What it does is suggest that ISPs will likely be prohibited for charging content providers a premium for making their traffic faster or from slowing down the traffic of other content providers who don't pay a premium. As the FCC explains it:

A commercial arrangement between a broadband provider and a third party to directly or indirectly favor some traffic over other traffic in the connection to a subscriber of the broadband provider (i.e., “pay for priority”) would raise significant cause for concern. First, pay for priority would represent a significant departure from historical and current practice. Since the beginning of the Internet, Internet access providers have typically not charged particular content or application providers fees to reach the providers' consumer retail service subscribers or struck pay-for-priority deals, and the record does not contain evidence that U.S. broadband providers currently engage in such arrangements. Second this departure from longstanding norms could cause great harm to innovation and investment in and on the Internet. As discussed above, pay-for-priority arrangements could raise barriers to entry on the Internet by requiring fees from edge providers, as well as transaction costs arising from the need to reach agreements with one or more broadband providers to access a critical mass of potential users. Fees imposed on edge providers may be excessive because few edge providers have the ability to bargain for lesser fees, and because no broadband provider internalizes the full costs of reduced innovation and the exit of edge providers from the market. Third, pay-for-priority arrangements may particularly harm non-commercial end users, including individual bloggers, libraries, schools, advocacy organizations, and other speakers, especially those who communicate through video or other content sensitive to network congestion. Even open Internet skeptics acknowledge that pay for priority may disadvantage non-commercial uses of the network, which are typically less able to pay for priority, and for which the Internet is a uniquely important platform. Fourth, broadband providers that sought to offer pay-for-priority services would have an incentive to limit the quality of service provided to non-prioritized traffic.

In light of each of these concerns, as a general matter, it is unlikely that pay for priority would satisfy the “no unreasonable discrimination” standard. The practice of a broadband Internet access service provider prioritizing its own content, applications, or services, or those of its affiliates, would raise the same significant concerns and would be subject to the same standards and considerations in evaluating reasonableness as third-party pay-for-priority arrangements.

The FCC's net neutrality rules are aimed at preventing things such as Comcast's actions in 2007 in slowing or blocking its Internet subscribers' access to BitTorrent. It does not keep Comcast's Internet customers from purchasing faster download speeds. Comcast later changed its practices in order to be “protocol agnostic” and focus instead on excessively heavy users that interfere with overall network traffic, regardless of the type of content.

That appears to be permissible under the FCC's net neutrality rules, which allow for “reasonable network management” aimed at “ensuring network security and integrity” and “reducing or mitigating the effects of congestion on the network.”

Sullivan and McDowell's effort to falsely conflate the issue of customer usage with that of broadband providers attempting to restrict certain types of content on their networks is misleading and (deliberately?) confuses the issue.