The FCC on Net Neutrality: Be Careful What You Wish For

Yesterday's decision by the FCC to regulate Internet providers as common carriers is being hailed as a victory by most of the groups supporting net neutrality, and as a loss by the cable and telecommunications companies that will now be regulated. But as much as I back the concept of net neutrality – the idea that Internet providers shouldn't discriminate among content providers – I worry that we really don't know where these changes will lead to, and that there are likely to be unintended consequences that we can't predict.

The actual ruling, which came on a 3-2 partisan vote, classifies the Internet providers as a telecommunications service under Title II of the Communications Act, as opposed to an information service. The FCC has promised to "forebear" many of the regulatory powers it would have under that act, but it hasn't yet published the final ruling, so many of the details remain unknown.

The ruling follows years of debate about net neutrality. The concept seems obvious to me – if I subscribe to an Internet provider, I want to be able to get to all of the Internet content equally, at the speed I'm paying for. And while I understand the reason why some providers like the concept of "paid prioritization" – where services like Netflix pay an Internet provider such as Comcast extra to make sure their content gets delivered quickly - I can see how if this practice becomes commonplace, the Internet sites that can't afford to pay for this would be relegated to the "slow lane." The arguments by smaller firms such as Etsy that this would hurt their businesses and prevent new ones from being started make a lot of sense to me.

The FCC has tried to address this before, going back to Comcast's attempt to slow down connections to peer-to-peer sites such as BitTorrent. In 2010, the FCC passed rules that required transparency, no blocking, and no "unreasonable discrimination" in providing access to web sites. Verizon led an appeal of that ruling, and last January, the D.C. Circuit Court of Appeals agreed that the FCC didn't have the authority to impose those rules on services it hadn't classified as telecommunications service.

While the Internet providers took that as a win, yesterday's ruling reclassifying them so they can be more tightly regulated was an unforeseen consequence. Indeed, for years, FCC members stated they didn't want to reclassify Internet providers, but it seems like the court ruling gave them little other choice. Of course, the Internet providers will appeal this ruling, as well, and likely work with their supporters in Congress to get the laws changed.

In the meantime, the advocates of net neutrality mostly seem overjoyed with the ruling. But I worry that they, too, should be wary of unintended consequences.

Most advocates of net neutrality, including me, would also favor very little regulation on the Internet. But the simple act of reclassification means that the FCC is asserting it has the power to regulate the Internet in all sorts of ways, even if it is promising to forebear new regulations regarding pricing, taxes, and fees. There's no guarantee that future commissions won't change their minds. And while the First Amendment generally provides protection for speech in this country, there are those who argue that providers should block sites that support terrorist groups or that provide pornography. Once the FCC has the right to regulate the Internet, it's hard to draw a firm line.

One reason that net neutrality is so important is because we have so few options in broadband providers. While there are a few places with fiber connections available through Google or phone companies, (and the FCC also seems to be pushing for municipal broadband), most of us have only one place to get a high-speed broadband connection: our local cable companies. And in most cases, it was regulation that established the local cable monopolies in the first place.

Another consequence of tighter U.S. regulation of the Internet is that it will make it harder for the government to argue against further Internet regulations in other countries. Having a global Internet where everyone can talk to everyone, with relatively few rules, has been a huge benefit. I'm worried we're moving slowly towards a more fragmented Internet, with each country or region having its own set of rules.

I would have preferred a middle ground here, with Congress and the administration agreeing to laws that would have enabled the FCC to enforce net neutrality rules without reclassifying Internet service. It seems that it would have been a good time to look at the overall Telecommunications Act, which hasn't been updated since 1996, before most of today's Internet sites even existed and long before we had fast wireless data. But partisans on both sides dug in their heels to the point that no legislation could move forward. This led directly to yesterday's ruling, with the prospect for more appeals and regulations that could change dramatically depending on who controls the FCC. To both sides I say: be careful what you wish for. You may get it, and find the consequences aren't what you expect.

For more, check out 5 Things You Need to Know About the FCC's Net Neutrality Plan and the video below.