Net Neutrality Friday

I have now seen a number of outlets in the media talk about the Internet "Fast Lane" and want to provide a bit of a reset on this topic for everyone.

The FCC has opened up a comment period as part of their standard practice. I have heard people being encouraged to send short messages to the FCC over that open comment channel. I can tell you that doing so is useless. They will discount those unsophisticated attacks out of hand. This is a serious issue with serious consequences. The open commentary period is intended for thoughtful commentary on the topic. Most of it will come from Internet Service Providers and their lobbyists. Some will come from Industry Observers, both for and against the proposition.

Most people seem upset that the FCC has destroyed Net Neutrality. That is not actually the case and that has caused lots of misunderstanding what is going on. In fact, Federal Courts struck down the Net Neutrality rules that the FCC put in place. In the current circumstances, these rules can not be put back in place. So, the FCC is attempting to start to talk about a path forward. The talk is certainly useful. The path is yet to be seen.

Now many of you are now saying (or thinking): "Wait a minute...that is not what I heard or read." Of course not. What is going on is a bit more complicated. The FCC does not make laws. It makes rules to implement laws. Laws are created by Congress. The law in this case comes from the Telecom Act of 1996. That's right 1996. If you think back, that was the heady days of dial-up Internet. If you recall, Mosaic came out in 1993 and Netscape popped up in 1994. In 1996, I was still doing static HTML pages for our website at Racal-Datacom. That website was hosted by Engineering and was being taken over by IT. The law in 1996 does not even talk about Internet Service. So, the FCC has to find something in the law to describe Internet Service. It has a couple of choices and in the end declared Internet Service to be an "Information Service".

That may sound obvious to you now, but Information Service in this context has a regulatory meaning. In this case, it says that the FCC has declared that Internet Service falls outside of regulation except in the most egregious circumstances. The FCC did this because Internet Service was so new that it was not clear how it was going to evolve. The thinking was to put a more meaningful set of regulations around it would cause investment in the Internet to be curtailed. This policy has worked magnificently. Now because things have changed, the FCC has periodically tried to regulate Internet Service without changing it from being an Information Service. Every single time the FCC has gotten slapped down by the courts.

The problem is that there is really only one alternative under the law. That is change Internet Service to be regulated like Phone Service under something called Title II. This would allow the FCC to put Net Neutrality back in place. The problem is that once you have made this change, you really can't go back. There is concern that Internet Service is still young and evolving. Changing the rules now might be a mistake. And Title II can be implemented at any time. Right now, the number of actual problems is rather small. People are extrapolating and saying that they can become big. That is true, but if so we can change things in the future. Today, this is really about Netflix. It might be about other things in the future, but not yet.

What I am trying to say is that in a shocking turn of events the mainstream media has given you a bad understanding of the situation.


Jim Sackman
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