The new fight over the future of the internet

When Mark Zuckerberg created Facebook in his Harvard dorm room, he didn’t need to ask Comcast, Verizon, or other internet service providers to add Facebook to their networks. He also didn’t have to pay these companies extra fees to ensure that Facebook would work as well as the websites of established companies. As soon as he created the Facebook website, it was automatically available from any internet-connected computer in the world.

For the last decade, debates over internet policy have focused on “network neutrality,” the question of whether broadband companies can configure their networks to give some kinds of content priority over others. That fight has dragged on and on and on as the Federal Communications Commission has repeatedly tried and failed to come up with an approach that will pass muster with the courts.

Yet recent developments have threatened to make traditional network neutrality regulation almost irrelevant. Earlier this year, Comcast allowed Netflix streaming quality to degrade until Netflix paid it for a faster connection — which Netflix did under protest in February. That might sound like the kind of tactic network neutrality is supposed to prohibit, but because the dispute involved a connection to Comcast’s network, instead of treatment of traffic on Comcast’s network, FCC chairman Tom Wheeler said Comcast’s actions weren’t a network neutrality violation.

My colleague Yuri Victor accidentally found himself at the center of a PR battle after he tweeted a screenshot of the Netflix app blaming Verizon for the poor quality of Yuri’s Netflix streaming.

The accusation provoked an angry response from Verizon, who insists that Netflix, not Verizon, is to blame for the poor performance of Netflix streaming on its network:

A new post on the Google Fiber blog describes how Google ensures customers using its Kansas City broadband service don’t experience congestion when they’re watching high-bandwidth content such as online video.

“We have also worked with services like Netflix so that they can ‘colocate’ their equipment in our Fiber facilities,” writes Google’ss Jeffrey Burgan. “We give companies like Netflix and Akamai free access to space and power in our facilities and they provide their own content servers.”

The debate surrounding today’s net neutrality vote at the Federal Communications Commission has been all about “fast lanes.” FCC Chairman Tom Wheeler says his proposal would prohibit them. Critics on his left say that stronger rules are needed to prevent them. The FCC’s Republican commissioners say that the specter of fast lanes is largely imaginary, and that net neutrality rules are a solution in search of a problem.

They’re all wrong. Fast lanes are real. They exist now. And none of the rules the FCC proposed this week are going to prevent them.

The Federal Communications Commission took an important step toward regulating broadband internet service on Thursday, with a 3 to 2 vote to begin taking public comments on a set of network neutrality proposals.

On Thursday, the FCC approved a notice of proposed rulemaking, which is the first step in the formal process of making new regulations. The NPRM, which was approved by a party-line 3-2 vote, describes possible options for protecting network neutrality and asks for public comment. The public will have 4 months to provide feedback on the proposals. Then the FCC will approve a final rule that will be legally binding.

In the last two weeks, the debate over network neutrality has focused on a specific legal maneuver known to insiders as “reclassification.” A decade ago, the Federal Communications Commission decided to classify broadband internet as an “information service,” a legal category that limits the agency’s ability to regulate it. That led to a legal setback in January, when an appeals court ruled that it was illegal for the FCC to impose common carrier regulations on services in this category, meaning that the network neutrality rules it had agreed to were a no-go.

That left the FCC with two options: it could water down its net neutrality rules to fit within the boundaries the court had set for information services, or it could declare that broadband is actually in a different legal category, a “telecommunications service,” which would allow the FCC to establish the kind of robust rules that net neutrality supporters favor. Right now, net neutrality activists are outside the FCC urging the agency to reclassify.

The Federal Communications Commission is currently considering “reclassification,” a legal maneuver that would allow the agency to enact stronger network neutrality regulations. A favorite talking point of reclassification opponents is that the last time the FCC considered this option, in 2010, 74 Congressional Democrats signed a letter urging FCC chairman Julius Genachowski not to do it. Genachowski listened, choosing an alternative legal strategy that wound up being rejected by the courts in January.

Now history is repeating. Genachowski’s successor, Tom Wheeler, is considering how to respond to that court ruling, and he is under pressure from network neutrality advocates to reclassify. And once again, telecom industry allies have circulated a letter among House Democrats opposing reclassification.

Elsewhere on the site, they are doubling-down on the idea of using cumulative investment figures to create the appearance of a steady upward trajectory:

Obviously the facts about declining investment aren’t enough on their own to prove anything about internet competition or the appropriate level of regulation. But the fact is that this is a profitable industry operating in a low interest rate environment that is choosing not to make the kind of capital investments that it made in years past.

The broadband industry, like other industries I am familiar with, does not like the idea of government regulations that would make it less profitable. In search of a more persuasive argument than that, Tom Downey, a lobbyist for the National Cable Telecommunications Association, is circulating a letter to members of congress arguing that “in the years that broadband service has been subjected to relatively little regulation, investment and deployment have flourished and broadband competition has increased, all to the benefit of consumers and the American economy.”

So is broadband investment flourishing? Not according to the NCTA’s own data which shows investment booming in the years before the Great Recession and declining more recently:

Federal Communications Commission chairman Tom Wheeler is under intense pressure from both sides as he crafts a new set of network neutrality rules. Over the weekend, the Wall Street Journal reported that Wheeler was revising rules he released last month in response to lobbying from liberals who regarded them as too weak. Network neutrality proponents have been pressuring Wheeler to reclassify broadband as a telecommunications service, a legal category that would give the FCC broader authority to regulate internet access.

Now network neutrality skeptics are mobilizing to stop such a reclassification. The liberal advocacy group Free Press tells me that Rep. Gene Green (D-TX) is asking colleagues to sign onto a letter urging Wheeler not to reclassify broadband. “In the years that broadband service has been subjected to relatively little regulation, investment and deployment have flourished and broadband competition has increased,” the letter argues.

When people point out problems with the current broadband market, a common response is to say that however bad the current situation might be, having the government regulate the internet would make things even worse.

It’s not a crazy argument. In fact, I made a version of it myself a few years ago. But it misses an important fact about the internet: it’s been regulated for decades. Indeed, a competitive internet probably wouldn’t have been possible without government regulation. So the real question isn’t whether to regulate the internet, but what kind of regulation will work the best.

If you’re the customer of a major American internet provider, you might have been noticing it’s not very reliable lately. If so, there’s a pretty good chance that a graph like this is the reason:

These graphs comes from Level 3, one of the world’s largest providers of “transit,” or long-distance internet connectivity. The graph on the left shows the level of congestion between Level 3 and a large American ISP in the Dallas area. In the middle of the night, the connection is less than half-full and everything works fine. But during peak hours, the connection is saturated. That produces the graph on the right, which shows the packet loss rate. When the loss rate is high, thousands of Dallas-area consumers are having difficulty using bandwidth-heavy applications like Netflix, Skype, or YouTube (though to be clear, Level 3 doesn’t say what specific kind of traffic was being carried over this link).