Eager to preserve the Internet's openness but not to be rebuked again by the courts, the Federal Communications Commission is crafting yet another set of "Net neutrality" rules to limit broadband providers' control over the data traveling through their networks. The tentative proposal unveiled Thursday seems more permissive than the rules a federal appeals panel rejected in January, prompting some critics to warn that Internet service providers will rush to create "toll lanes," giving preference to some content providers and moving their data faster to end-users. But commission officials say they want the new restrictions to do as much to protect competition, innovation and free expression as the previous ones did. That's the right goal, although it remains to be seen whether they can achieve it.
The Internet is no egalitarian playground. Companies with deep pockets, such as Netflix, can already buy speedier, more reliable delivery of their content to broadband networks, such as Comcast's. But within their networks, Internet service providers haven't favored one competitor's transmissions over another's. When traffic gets congested, ISPs don't put any site or service's content at the front of the line
To preserve that status quo, the FCC adopted rules in 2010 that banned ISPs from blocking legal content (a rival's online phone service, for example) or unreasonably discriminating against any site or service's traffic. These rules were thrown out on appeal on the grounds that the commission had exceeded its authority. Nevertheless, the District of Columbia Court of Appeals suggested that the commission could adopt less prescriptive rules to stop ISPs from blocking sites or discriminating in commercially unreasonable ways.
That's what FCC Chairman Tom Wheeler has called on the commission to do. His proposal, which the commission is expected to put out for public comment next month, would set a clear ban on blocking legal sites but a fuzzier restriction on prioritizing traffic. The commission would judge deals by ISPs to give sites preferential treatment based on their effect on consumers, competition, innovation, investment and free expression, among other factors. But the new rule would effectively shift the FCC's default position from opposing prioritization with exceptions to allowing it with conditions.
It's not the commission's job to put every website on an equal footing online, and some innovation by ISPs to manage traffic could actually help consumers and promote competition. Nevertheless, one risk in allowing prioritization is that it gives ISPs an incentive to keep traffic congested to maintain the demand for special treatment. Another is that it could promote deep-pocketed sites at the expense of everyone else. The commission needs to ensure that its rules don't lead to either of those outcomes. There's no point in adopting rules that are legally defensible if they don't actually protect the open Internet.