When the FCC kicked-off its net neutrality proceeding in 2009, it labeled the proceeding “Preserving the Open Internet.” But to “preserve” means to “make lasting” or “maintain” rather than “change,” and that’s what many public interest advocates really want to do – change the way the Internet currently operates. For them at least, renaming “change” as “preservation” is classic doublespeak designed to disguise the real intent of net neutrality regulation.
The most obvious example of change sought by net neutrality advocates is their desire to eliminate prioritization of Internet packets. They want to prohibit transactions that “favor certain content on the Internet” so that the Internet can be “equally accessed by all innovators, speakers, and businesses. Like it is today.” But “popular” content is already given favored access by content delivery networks, as the FCC recently recognized in OBI Technical Paper No. 4. In Appendix 3, the FCC points out that “[c]ontent delivery networks (CDNs) are designed and deployed for the purpose of optimizing the end user Internet experience by storing and sourcing ‘popular’ content closer (by way of physical distance as well as fewer network elements) to end users.” CDNs improve network performance by reducing possible sources of network degradation such as packet loss (fewer network elements with packet buffers), packet jitter (less network connections between fewer elements), and latency (packets between the CDN servers and users have shorter distances to travel). (OBI Technical Paper No. 4, App. 3, page 23.) However, “not all content is subject to CDN distribution.” (Id.) In other words, CDNs are designed to favor popular content over less popular content – and in this context, “popular” means content provided by those who can afford to pay for CDNs to prioritize it.
Thus, to satisfy the goals of the public interest groups, the FCC would need to prohibit the use of CDNs (even though they provide consumers with a better experience). The FCC instead indicated in its Reclassification NOI that it intends to ignore this issue by refusing to address CDNs at all. (Reclassification NOI at paragraph 107.) But not addressing an issue doesn’t make it go away; it just leaves many questions unanswered. If prioritization via a CDN is permissible, how does it meaningfully differ from prioritization through other methods? Does the consumer care how prioritization is achieved? Can Internet access service providers offer CDN services? Reclassification isn’t intended to answer any of these questions.
Another way in which public interest groups want to radically change the status quo involves what the Net Neutrality NPRM calls “managed services” and what the Verizon/Google Proposal calls “additional online services.” Public Knowledge apparently believes there is only “one Internet,” and that “additional online services” aren’t currently offered over this mythical Internet. In reality, there are many services provided using Internet protocols and infrastructure that are not offered over the “public Internet.” As the FCC noted in the Net Neutrality NPRM, “AT&T offers its U-verse multi-channel, Internet-Protocol-based video service through the same network as its fiber-based broadband Internet access offering.” (Net Neutrality NPRM at paragraph 150.) Virtual private networks use the Internet, but are by definition not public. And new services on the horizon, like healthcare applications, may also use Internet protocols without being offered over the “public Internet.” As Dean Bubley so aptly put in a recent blog post, “networked services and applications are already split between [“public”] Internet and non-Internet, and they’re going to stay that way.”
That is to say, they are going to stay that way unless regulators decide to change them through misguided attempts to “preserve” something that doesn’t exist.