Tech-Tock

Most Internet-policy issues are mind-numbingly complex and, let's face it, a little too dull for the broader public to sift through. So, if you're a small company caught up in an arcane battle with a massive service provider like Comcast, it can be hard to get anyone aside from specialized trade publications to care. Unless, of course, you say those two magic words: net neutrality. Just claim that the future of the open Internet is at stake, and your tiff is guaranteed to splash across headlines everywhere.

Want an example? Look at the recent dispute between Comcast and Level 3 Communications. Here's the gist: Level 3 is essentially an information highway that signed up with Netflix to deliver streaming movies. But, to reach actual viewers, that data first needs to go through a network operator that acts as an off-ramp to users. A network operator like … Comcast. Recently, Comcast decided to levy an extra fee on Level 3 to handle all those streaming movies. Given that Comcast provides Internet access to about 25 million Americans, Level 3 had to pay up. But Level 3 did have a secret weapon—it could haul its case before the press. And so, this week, Level 3 publicly accused Comcast of creating a tollbooth that "threatens the open Internet." Level 3 said Comcast was charging extra for Netflix streams to create an advantage for its own video-on-demand services. It was unfair, and contrary to the free spirit of the Internet. Reporters everywhere perked up. This, surely, was why we needed strict government rules to lasso giants like Comcast.

But is it really? Even net-neutrality advocates admit the case isn't quite so simple. After all, streaming video puts a big burden on network operators: One recent study found that Netflix already accounts for about 20 percent of peak Internet usage, and that's with subscribers still making up just a tiny portion of all users. Comcast claims the new fees are simply to help handle this extra load. "The problem is it's really hard to know if that's true," says Harold Feld, legal director of Public Knowledge, a group in favor of net neutrality. "Without rules and oversight, there's just no way to get to the bottom of this."

That's one reason why it's a good thing the Federal Communications Commission is nudging ever closer to a framework for this issue. On Wednesday, FCC Chairman Julius Genachowski gave a speech outlining principles for "Preserving Internet Freedom and Openness." (Notably, he never once used the term "net neutrality.") The precise rules, which aren't yet public, will get voted on by the FCC's five commissioners by December 21. New rules won't resolve every last dispute—rapidly evolving technology will always create new murky disputes—but just having something in place will help. "Once there's a process in place, the amount of gray area will shrink to a manageable level," says Feld, "and will continue to get filled in as complaints get resolved."

Seems simple enough. But other tech-policy experts note there might be an even bigger benefit to the new rules. In the years ahead, there will be no shortage of complicated-yet-crucial Internet issues that the FCC will need to attend to. Trouble is, right now, all anyone ever wants to talk about is net neutrality—it's the big bonfire that sucks all the oxygen out of the room. But, if these new rules can make net-neutrality fights a little less relevant, that alone just might be an important milestone.

It's worth noting that "net neutrality" isn't a technical term. It's not something that, say, engineers tend to use. It was coined by Columbia Law Professor Tim Wu back in 2003 to describe a principle—that, essentially, a service provider doesn't put any restrictions on what you can do with your Internet access. If I pay Comcast to connect me to the Internet, then Comcast shouldn't get to decide that some sites are easier to access than others. The idea is that the Internet has been great because it's a level playing field—sites and apps rise and fall based on their own merit, and not whether a giant company that owns infrastructure steers its customers toward certain sites. And, net neutrality advocates argue, it should continue to operate that way. The notion has been picked up from everyone by Tim Berners-Lee, the inventor of the World Wide Web, to liberal groups like MoveOn and Color of Change who see it as a core fairness issue.

Trouble is, the issue can get tricky very fast, especially as Internet technology keeps evolving. For instance, videoconferencing, which is becoming increasingly popular, requires packets of data to be delivered very quickly, with a high quality of service, so that the video doesn't get choppy. On the other hand, people simply browsing a few websites may not need quite as high quality service. In the abstract, it makes sense for a network operator to be able to distinguish between these different uses and manage traffic accordingly—so that, say, two people talking by video Skype get priority over a guy downloading a massive file through BitTorrent that could take days (brief interruptions aren't as big a deal for the latter). What we don't want is Comcast, which is currently trying to merge with NBC Universal, to use its power to privilege NBC content over rival ABC content—that would be undue discrimination. We also don't want a provider actively discouraging things like peer-to-peer file-sharing, something Comcast was doing a few years back. But writing proper rules can be difficult. (And, yes, if customers had ample choice among broadband providers, this wouldn't be a huge issue—but the market is currently dominated by just a few huge firms.)

In theory, Congress should be able to set a policy here. But it doesn't take up big telecom bills very often—the last one came in 1996, when the Internet was still fledgling. Earlier this year, Henry Waxman put forward a proposal in the House to set clear rules on neutrality, but that went nowhere. And the Republicans who will soon dominate Congress tend to think an unfettered market will produce the best economic outcome.

This is where the FCC comes in. Genachowski's speech outlined a few basic principles. Providers should be more transparent and should never block access to sites or apps. They would be allowed to apply some network management techniques as long as they disclosed them to users. Notably, however, providers of wireless Internet—the companies offering service to BlackBerrys or iPhones—would be given more flexibility in discriminating, say by prioritizing certain apps or websites on their networks. (This is ostensibly because wireless providers have only a limited spectrum to work with and need more leeway to manage bandwidth, whereas wireline providers can always add more wires.)

Genachowski's speech has already come in for plenty of criticism. Net neutrality advocates don't like the exemptions for wireless—not least because many poorer communities lack broadband access and rely on mobile Internet devices. It also appears, according to the proposed rules, that the FCC could allow "paid prioritization," which would allow, say, content providers to pay network operators extra to send out their data faster. Public-interest groups worry that this would give well-heeled firms a leg up on the Internet over smaller upstarts. And Republicans, for their part, oppose any major new regulations. "We're going to be like a dog to a frisbee on this," said Fred Upton, frontrunner to chair the House energy and commerce committee.

Meanwhile, there's a question of whether the FCC even has the authority to carry out these rules. In 2002, the commission began the process of deregulating the Internet by classifying broadband as an "information service" rather than a "telecommunications service"—limiting the FCC's authority over the matter. Rather than reversing this distinction (a controversial move), Genachowski has chosen a novel approach. The FCC is required by Congress to ensure that all Americans have broadband service. In July, the commission issued a National Broadband Plan and noted that 14 million Americans still lack service—and, as such, the FCC needs to take steps to correct this. One crucial move, the FCC will now argue, is to put net-neutrality rules in place. It's still unclear whether this will hold up in court. (The FCC's last attempt at net neutrality rules was knocked down by the D.C. Circuit Court this past April.)

But if, despite all the grumbling, the FCC's new rules do survive, they will at least help provide some regulatory certainty so that Internet providers can start making new investments. That's why many big providers—like Sprint—have welcomed the move.

And there's potentially a bigger benefit still. The FCC—and the broader tech-policy community—could finally turn its attention to other, equally important Internet issues. "There are all sorts of ways the government can take an active role in fostering faster, more pervasive service," says Richard Bennett of the Information Technology and Innovation Foundation. "But ever since net neutrality emerged as an issue in 2006, whenever you convene a large group of people to talk about this stuff, the discussion always gravitates toward net neutrality."

So what's not getting enough of the spotlight? Well, there's the task of expanding Internet access to the millions of Americans who still lack it, for one. Also, now that television has made the transition to digital, there's figuring out how to repurpose that valuable old TV spectrum for use in wireless broadband networks. (Last week, the FCC finally proposed a new rule on the matter.) The FCC could also try to look into ways to create a more competitive market for Internet service providers. A 2009 study by the commission found a whole slew of benefits that could spring from lowering the barriers to entry here. These are the sorts of complex policy decisions that could play a major role in driving innovation for years to come. "But it's hard to make progress on these issues as long as we're all fighting about net neutrality," says Bennett.

In other words, the specifics of whatever final net-neutrality rules the FCC devises might end up mattering less than the fact that there finally are rules—which means everyone could move on to all those other mind-numbingly complex tech debates at hand.

Bradford Plumer is an assistant editor for The New Republic.

For more TNR, become a fan on Facebook and follow us on Twitter.