How the FCC could be like TSA: proposal to create an Internet fast lane

Computers and network

Using money to privilege convenience may be the American ethic. And it’s a far cry from the egalitarianism exemplified in “all men are created equal.”

Look at the TSA and its “precheck” program, for example.

With TSA precheck, you pay $85 and cough up your biometrics and an application for government review. If you don’t have a prison record, you can probably get your own ID, a Known Traveler Number (KTN), and move to the front of the airport check-in line, an inconvenience that yields negligible risk reduction.

In a hurry but not in a car pool? Just pay a “toll” in many states and you can drive in the HOV lane even though you’re in a SOV.

But what if you wanted to send a present via FedX to your best friend, and she had to also pay FedX so that it would deliver to her expeditiously? Would we stand for that?

Giant corporations with ringers in the regulatory system are pushing similar preferential treatment for Internet traffic. And the FCC is playing along, in part because Congress is moribund.

What is the FCC proposing?

In late 2010, the Federal Communications Commission passed a set of Open Internet Rules, which it called “just another way” to talk about “net neutrality.”

“Net neutrality” is a simple concept: you pay for Internet service and you get the speed and volume you pay for, with no interference from the ISP. Just like telephone, electricity, gas, water or sewer. The utility doesn’t slow down delivery to your home or privilege delivery to your neighbor’s home. There may be preferential pricing — reduced electricity costs at midnight, for example — but if there is, everyone has access to it.

But that is not how the Internet works. Congress has blocked having Internet service providers classified as utilities or common carriers. Courts have blocked the FCC from writing rules that treat ISPs like common carriers.

Back in January, in Verizon v. FCC a U.S. Court of Appeals struck down part of the FCC Open Internet order. This before-and-after chart shows Netflix network speeds on Comcast, with the now-legal extortion leading to faster bit delivery.


In other words, the effect of the court decision is like the FedX example above: I pay for “high speed” internet access so that I can watch Netflix and have a TV-like experience. But Netflix has to also pay my ISP to deliver its bits expeditiously, a payment in addition to its basic bandwidth costs.

Comcast is bound by network neutrality provisions put in place by the FCC after the company acquired NBC Universal, however, those provision will expire in 2018. And based on the Netflix bit-speed chart, the provisions have no teeth in the wake of the Verizon decision in January.

Thus the need for FCC action.

FCC Chairman Tom Wheeler (a revolving door ringer) plans to issue a Notice of Proposed Rule Making (NPRM) at its May 15 meeting. The FCC is rewriting the 2010 rule to get around the 2014 court decision.

Critics of the proposal released April 24 claim that the FCC is endorsing pay-to-play measures that set up an Internet fast laneStacey Higginbotham, writing at Gigaom, believes the FCC is cribbing from a 2011 order about cellphone data roaming, an order that survived a different Verizon court challenge. But in the process, the FCC is laying the ground for a two-tiered Internet.

Supporters claim that the FCC has no choice under current statute. Assuming the NPRM is approved next month, there will be a public comment period which is usually 30 or 90 days but has been longer with controversial measures.

We could get around these battles if Congress would man-up and legislate that Internet service providers (and all the players in-between) as well as mobile data telecoms are common carriers. Common carriers cannot discriminate — that’s why AT&T has to treat Verizon phone calls the same as it treats its own.

About equal access and egalitarianism

Our nation was founded on the concept that “all men are created equal.”

It would be helpful if the companies controlling the pipes into our homes weren’t also creating content that competes with other content providers. Why might Comcast want to degrade Netflix streaming? Because it competes with Comcast cable. This principle of fairness and equal access explains why 20th century regulators broke up Boeing and United Airlines, as well as why the U.S. Supreme Court made Paramount Pictures (et al) unbundle movie rentals and divest their movie theaters.

The Internet is one of the most powerful communication tools that man has created. It brings information to the fingertips of those isolated from mammoth libraries. Do we really want that power to inform, educate and entertain go to the highest bidder?

Sen.  Bernie Sanders (I-VT) has called the FCC proposal “misguided” and believes that “the average American would be the big loser” if we allow corporations to control the “free flow of ideas.” He concludes, “We must not turn over our democracy to the highest bidder.”

I agree.



Additional reading

By Kathy E. Gill

Digital evangelist, speaker, writer, educator. Transplanted Southerner; teach newbies to ride motorcycles! @kegill

4 replies on “How the FCC could be like TSA: proposal to create an Internet fast lane”

I agree that in 1913 it appears we followed the wrong decision tree, but I’m not convinced that the consumer-as-producer future was clear then, in the age of the telegraph and the very early days of radio. Harding was the first president to make a radio broadcast, in 1922:

I’m not convinced that the consumer-as-producer model was clear even when Netscape began the transformation of how information was shared on the Internet.

[If you haven’t read it, recommend Brian Winston: Media, Technology and Society ]

And a question for you, Michael:
Can you point me to an accessible explanation of backend traffic/pipes/processes? I know I have a rudimentary understanding ( How is it alike/different from electricity transmission, for example? (Is that in Wu’s book?) What do arrangements like Comcast/Netflix (characterized as pay-to-play) mean in the context of ever-more-info in the cloud and accessed by mobile devices?

Hmm. My comment submit button has disappeared …

First, we need to agree that “the internet” was an unintended consequence of several open access and mandated interconnection policies of the 1980s-90s (which I outlined in the comments section of Kathy’s Feb 18 post on infrastructure competition). Al Gore, net neutrality pundits (Lessig, Wu), even Google ( might have one think otherwise.

Second, kudos on resurrecting Noam’s classic 1994 papers just as the internet sprang to life for the majority of people in the form of the browser. Sure we all guessed (I was writing about data clouds and wireless bypass of wired in 1990) the internet would happen but we didn’t know how it would develop and didn’t fathom the changes it would introduce.

Third, Noam makes an important point on page 3 of the 2nd paper that as the industrial revolution developed “common callings” were limited to transportation and communications and related sectors. But the information revolution has superceded the industrial revolution, yet policy has not changed to reflect the fact that the goods of production are now the means and ends of “the network”.

As we know history is often distorted by those who would like to fit it into the present; rather than learn from the context around which events actually occurred. It is also far easier to point to causality after the fact, rather than ex ante. So even the causal elements and their import are easily twisted and distorted, but more importantly, only those who do it daily (risk takers) can actually pave the way to the future. Government should benignly monitor, adjudicate and support open market solutions. They should not set pricing to clear future supply and demand, nor should they attempt to regulate on a case by case basis.

In my opinion, we need to revisit 1913 and understand that we took the wrong fork in the road. The information revolution was already 70 years underway, yet we didn’t understand 2-way network economics where consumers and producers were one and the same. Nor did we have the knowledge or all the technical means to quantify and qualify the costs and pricing around each layer and boundary point of the networks.

But we have all that knowledge today and we should be applying it to solve not yesterday’s and today’s issues, but rather define a multi-stakeholder model (trade, capital, policy and academic) that gets us rapidly to a future of infinite choice and usage for 4K, 2-way HD telepresence, inexpensive mobile BB, and the internet of things. The latter 3, in particular, require performance, security and capacity solutions (particularly upstream) that neither model (IP packet or PSTN circuit) can solve today. And yet all the supply and demand forces for these trends are clearly in place. It is time to take the best parts of both models and rethink the service provider models and the policies that prevent them from evolving.

So that the reader is perfectly clear, there is absolutely a role for regulation and oversight of networks (if only because public rights of way and frequencies are constrained by external conventions). It is incumbent on the FCC to understand and account for the positive impact of interconnection and open access that I outlined in Kathy’s Feb 18 post over the past 30 years. And Chairman Wheeler, who was directly involved with 2 industries that benefited substantially from open access, has the opportunity to be a man of destiny rather than one history views as a hypocrite.

Addendum, from 1994:
“The primary problem of a contract-carrier based network system is its reduced openness to a wide diversity of voices, in comparison to a common carriage system, to and its increase in transaction costs, and its potential reduction of service to marginal customers. (This assumes that interconnection and market power would be dealt with otherwise.) Thus, even if common carriage erodes, its neutrality principles still remain important for economic efficiency and free speech, and will have to be protected in other ways.”

Also, see part 1:

And part 3:

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