9 questions about network neutrality you were too embarrassed to ask


President Barack Obama announced on Monday that he supports taking strong measures to protect network neutrality. The announcement was not terribly surprising — Obama has long been an avowed supporter of network neutrality. But this is the first time Obama has proposed a specific legal strategy for protecting network neutrality. And his comments will raise the profile of what was already the most contentious policy debate in the technology world. If you’re just tuning in now, it can seem a little overwhelming. What is network neutrality? What’s “reclassification?” And why have people been arguing so angrily for so long? Here’s an explanation that starts from the very beginning. 1. What is network neutrality? Facebook founders Mark Zuckerberg and Dustin Moscovitz in 2004. (Justine Hunt/The Boston Globe via Getty Images) When Mark Zuckerberg created Facebook in his Harvard dorm room, he didn’t need to ask Comcast, Verizon, or other internet service providers (ISPs) to add Facebook to their networks. He also didn’t have to pay those companies extra fees to ensure that Facebook would work as well as the websites of established companies. Instead, as soon as he created the Facebook website, it was automatically available from any internet-connected computer in the world. That’s network neutrality. It’s the idea that these companies should treat all internet traffic equally. It says your ISP shouldn’t be allowed to block or degrade access to certain websites or services, nor should it be allowed to set aside a “fast lane” that allows content favored by the ISP to load more quickly than the rest. 2. What’s the argument for network neutrality? Advocates say the neutrality of the internet is a big reason there has been so much online innovation over the last two decades. Network neutrality keeps the barriers to entry for new websites and internet applications low. That freedom has allowed the creation of dozens of innovative online services, such as Google, Twitter, Netflix, Amazon.com, Skype, and more. Advocates say the neutrality of the internet is a big reason there has been so much online innovation Advocates worry that without net neutrality, the internet would become less hospitable to new companies and innovative ideas. For example, if large ISPs began requiring video-streaming sites to pay extra to deliver video content to their customers, the expense and hassle of negotiating deals with dozens of network owners could make it difficult for the next YouTube to get traction. Net neutrality supporters also worry that incumbent broadband providers could deliberately hobble new services that represent a competitive threat to incumbent services. For example, cable companies might want to slow down services such as Netflix that compete with their paid television service. 3. It seems like we’ve been arguing about network neutrality for a long time. What’s taking so long? Former FCC chairman Julius Genachowski, whose 2010 network neutrality regulations were rejected by the courts in 2014. (Robert Giroux/Getty Images) For nearly a decade, the Federal Communications Commission has been trying and failing to craft network neutrality rules that will pass muster with the courts. In 2008, and again in 2010, the FCC took action to prohibit discrimination by internet service providers. But in both cases, the courts ruled that the FCC had exceeded its authority, sending the agency back to the drawing board. The last time this occurred was in January 2014, when the courts said the agency’s 2010 rules weren’t consistent with the law. 4. What does President Obama want the FCC to do now? Obama has supported network neutrality in principle since he first ran for president in 2008. But on Monday, he got more specific. He called on the FCC to use a procedure called reclassification to get the power it needs to protect network neutrality. To understand Obama’s proposal, we have to go back to 1996, the year Congress last overhauled telecommunications law. In that year, Congress established two legal categories: Telecommunications services are services, such as a traditional phone line, that are considered common carriers. The law imposes a wide variety of legal obligations on telecommunications services and gives the FCC broad discretion to regulate them. Information services are services that allow people to store, process, and publish information online. In 1996, that meant online services like AOL. Today, it includes websites like YouTube or Facebook. These services are exempt from most FCC regulations. The FCC lost in court in January because it had previously decided that broadband is an information service, and is therefore exempt from most regulation. However, the FCC has the power to decide which category to put broadband services into, and it can change its mind if it wants to. Obama — along with a number of technology companies and net neutrality activists — wants the agency to do just that: switch broadband to the high-regulation “telecommunications service” category. This is known to insiders as “reclassification.” And most legal experts believe that would give the FCC the power it needs to enact strong network neutrality regulations. 5. What are the arguments against Obama’s proposal? Google officials announce the expansion of their fiber broadband service to Provo, UT, in 2013. (George Frey/Getty Images) Critics of network neutrality argue that requiring networks to treat all traffic the same could discourage beneficial innovation by network owners. For example, some applications (such as voice calling and online games) are particularly sensitive to delays delivering internet content. Internet users might benefit if they could pay a premium to ensure that these applications are given priority, but strict net neutrality rules could prevent that. Network neutrality opponents also worry that regulations could discourage investment in network infrastructure. In some parts of the country, companies such as Verizon and Google have built new fiber-optic networks that allow speeds as high as 1 gigabit per second — 100 times faster than typical networks today. But these networks can cost billions of dollars to build, so many parts of the country haven’t gotten them yet. If network neutrality rules make networks less profitable, that could slow the pace of investment. Beyond these general arguments against network neutrality regulation, opponents also argue there are specific problems with reclassifying broadband as a high-regulation telecommunications service. Reclassification would trigger a number of regulations designed for public utilities such as old-fashioned telephone service. For example, the law imposes a complex system of price regulations on telecommunications providers. Critics say this cumbersome and bureaucratic rate-setting process is ill-suited for the fast-changing internet economy. Net neutrality opponents say these and other outdated rules would strangle the internet in red tape, reducing the pace of innovation. 6. Is it true that Obama’s proposal would strangle the internet in red tape? It’s hard to be sure, but probably not. It’s true that reclassification would trigger a number of legal provisions that are not a good fit for the internet. But the Republican Congress that passed the current telecommunications laws in 1996 provided a tool for just this purpose, known to insiders as forbearance. Network neutrality opponents worry regulations could discourage investment in network infrastructure The FCC has broad authority to “forbear” — that is not enforce — provisions of telecommunications law that it regards as counterproductive. The FCC has used this power on a number of occasions, and the courts have been highly deferential to the FCC about when and how to use it. So network neutrality supporters have suggested a two-step process: first, reclassify broadband as an information service, then use forbearance to avoid imposing outdated regulations on the internet. Of course, no plan is foolproof. This one would almost certainly trigger lawsuits that would tie the FCC up in court for years. But the reality is that almost anything the FCC does could tie the FCC up in court. Net neutrality advocates argue that it’s worth the risk, since reclassification gives the FCC the best shot at establishing strong network neutrality regulations that will eventually be upheld in the courts. 7. This is complicated! Can we take a music break? Sure. Listen to Britney Spears, one of the first pop stars of the internet age, crooning “E-Mail My Heart.” The song comes courtesy of YouTube. While YouTube is now owned by Google, it began as a startup — exactly the kind of independent online service that network neutrality advocates say might have trouble getting off the ground without network neutrality. 8. So if the FCC reclassifies and establishes network neutrality regulations, will that be enough to preserve a level playing field online? Not necessarily. Advocates of a level playing field online have become increasingly concerned about broadband providers abusing their power in ways that aren’t covered by conventional network neutrality regulations. Regulations focus on the connection between a broadband provider (like Comcast or Verizon) and the end consumer. But large broadband providers also have connections to a variety of other parts of the internet. These connections also provide opportunities for broadband providers to make mischief. Yet they’re not governed by conventional network neutrality rules. Netflix has accused Comcast of deliberately provoking the crisis by refusing to upgrade its network A controversy earlier this year illustrates the danger. In February, Netflix agreed to pay Comcast to ensure that its videos would play smoothly for Comcast customers. The company signed a similar deal with Verizon in April. Netflix signed these deals because its customers had been experiencing declining speeds for several months beforehand. Netflix realized it would be at a competitive disadvantage if it didn’t pay for speedier service. After its payment to Comcast, Netflix’s customers experienced a 67 percent improvement in their average connection speed. Netflix has accused Comcast of deliberately provoking the crisis by refusing to upgrade its network to accommodate Netflix traffic, leaving Netflix with little choice but to pay a “toll.” That might sound like a classic network neutrality violation. But surprisingly, leading network neutrality proposals wouldn’t affect this kind of agreement at all. That’s because Comcast wasn’t technically offering Netflix a “fast lane” on the connection between Comcast and the end user. Instead, Comcast’s negotiation with Netflix was over the speed of the connection between the two companies. The terms of these agreements, known as “peering,” have always been negotiated in an unregulated market, and conventional network neutrality regulations don’t apply to them. Tim Wu, the man who coined the term network neutrality, believes that the concept is broad enough to encompass issues like the Comcast-Netflix dispute. “Network neutrality is how the public has learned to talk about the conditions of competition over the wires,” he told me in June. “I think it’s useful to just have a general word that signifies this is the conditions by which companies on the internet are treated.” This interconnection issue is going to be a difficult one for network neutrality advocates. It’s one thing to talk about this kind of interconnection dispute in terms of network neutrality. But it’s a harder problem to develop clear, enforceable rules to prevent broadband providers from abusing their power in the interconnection market. 9. What happens next? Sen. Ted Cruz (R-TX). (Erich Schlegel/Getty Images) Officially, Obama’s Monday announcement doesn’t change anything. The FCC is an independent agency. Its chairman, Tom Wheeler, has been working on a network neutrality proposal since the spring. He has vowed to continue that work, and is expected to unveil new rules before the end of the year. Those rules might include reclassification, or not. If Wheeler does choose to reclassify, that could trigger a war with the Republican leaders who will soon control both houses of Congress. Many Republicans are skeptical of network neutrality. Sen. Ted Cruz (R-TX), for example, has declared network neutrality to be “Obamacare for the Internet.” That doesn’t make much sense as a policy matter, but the political implications are crystal clear. Republicans are poised to portray network neutrality regulations as another example of big government overreach by the Obama administration. However, it’s not clear if Congressional Republicans will be able to do anything to stop new network neutrality regulations. There’s little doubt that the FCC has legal authority to reclassify, and President Obama is likely to veto any attempt to change the law to prohibit network neutrality rules.


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