“These aren’t the droids you’re looking for.” Obi-Wan Kenobi, Star Wars (1977).
Here begins an analysis of the FCC’s proposed net neutrality rules. Because the topic is so large, I’m breaking this analysis into a series (although I haven’t yet decided how many parts there will be). I won’t promise that the analysis will be comprehensive, as I intend to focus on the points I find most interesting, but I will try my best to keep using some of my favorite Star Wars quotes as bookends.
I begin with the scope of the proposed rules. According to the NPRM, the proposed rules are merely a “codification of the existing Internet policy principles,” albeit with two additions. But the rules as proposed are vastly more limited than the existing Internet principles. The existing principles are broad and consumer-centric. They say that “consumers are entitled” to (1) access lawful content of their choice, (2) use the applications and services of their choice, (3) connect their choice of legal devices, and (4) competition among network providers, application and service providers, and content providers.
The proposed net neutrality rules don’t mention consumers. Instead of focusing on what consumers can do, the proposed rules focus on what providers of “broadband Internet access service” can’t do. The FCC says this “would make clear precisely who must comply and in what way.” What the FCC doesn’t say is that the rules would also make clear that all of the other essential participants in the Internet ecosystem would have no obligations at all.
This discriminatory proposal is surprising, because some of these participants have as much potential to prevent consumers from enjoying the protections of the existing Internet principals as “broadband Internet access service” providers. As has already been widely reported, the Google Voice service is blocking consumers outright from connecting to certain telephone numbers. Google claims immunity because Google Voice is merely an application. To the consumer, however, the result is the same as Madison River: the consumer cannot connect to the desired number. This is the pro-bowl of blocking, yet unlike the existing Internet principles, the FCC’s proposed net neutrality rules wouldn’t apply to Google Voice. Welcome to the future of pro-consumer “nondiscrimination.”
What else would these rules allow application providers to do? As Commissioner Copps so eloquently stated on December 15, 2009, “History teaches us that when a company has the technical capacity and a financial incentive to interfere, there will be some bad apples who will.” If Commissioner Copps is right, an application provider like Google could start altering its search queries to favor its own devices (i.e., the Nexus), applications (i.e., its search results), and services and those of anyone else willing to pay Google a fee. (Indeed, such discrimination is allegedly already occurring.) If Google were allowed to alter search results in this way, the consumer impact would be no different than anything “broadband Internet access service” providers could do. Most consumers rely on Google searches to find what they need on the Internet. If Google excludes certain sites from its search results, Google would effectively “block” consumer access to the site, likely without the consumer ever knowing the site was blocked. Indeed, if one substitutes the word “Google” for “broadband Internet access service” provider in the following quote from paragraph 75 of the NPRM, the meaning is unchanged: “[Google] today could block, slow, or redirect access to websites espousing public policy positions that [Google] considers contrary to its interests, or controversial content to which [Google] wants to avoid any connection.” Why then do the proposed rules apply only to access service providers?
“These aren’t the droids we’re looking for. . . . Move along, Move along.” Stormtrooper, Star Wars (1977).
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broadband net neutrality