Net neutrality debate Part I: How we got here

Don't get what the Net neutrality debate is all about? CNET's Marguerite Reardon explains.

For more than a decade Net neutrality was an esoteric subject discussed only among telecommunications policy wonks; Washington, DC, lawyers; and the supernerdy.

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Today the topic is front page news.

And if you believe the headlines, the Internet as we know it will soon be dead. But is that really true?

I'll be honest with you. It's important for every Internet user to understand Net neutrality and the proposed rules the FCC outlined last week to protect the openness of the Internet. But don't panic. The situation is not nearly as dire as the headlines might suggest.

Still, deciphering the jargon around this highly technical issue is no easy task. To help explain what's been happening, I've created a two-part Ask Maggie column to explain Net neutrality in plain English. In Part I of the FAQ, I explain what Net neutrality is, the long history behind this issue, and what the FCC is currently doing about it. And in Part II, I will explain what life in the Internet "fast lane" really means for consumers.

I hope this pair of FAQs will help all my Ask Maggie readers get a better handle on what's really happening.

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Protesters gathered outside the FCC to express their concerns over the commission's proposal to reinstate Net neutrality rules. CBS

Net neutrality Part I: Let's start with the basics

What is Net neutrality?
Net neutrality is the principle that Internet service providers, such as AT&T, Comcast, Time Warner Cable, and Verizon, and governments around the world should treat all Internet traffic the same. This means Internet service providers (ISPs) shouldn't block or slow down traffic on their local broadband networks based on individual users. And they shouldn't modify their services based on the type of traffic those users are accessing or by the type of service that's sending the content.

I've been hearing so much about Net neutrality lately. But hasn't this issue come up in the past? How did we get to where we are now with this debate?
For more than a decade, supporters of Net neutrality have argued that the FCC needs a set of rules to ensure that broadband providers, which not only control consumers' access to the Internet but also sell Internet-based services, don't abuse their power.

In 2004, then FCC Chairman Michael Powell was the first FCC official to propose guidelines for keeping the Internet open. In 2005, the Republican-controlled agency adopted a set of principles to preserve a free and open Internet. These weren't rules or regulations, but rather guiding principles for ISPs to abide by.

The FCC attempted to enforce these principles in 2008, when Comcast was accused of slowing down traffic from BitTorrent, a file transfer protocol that allows people to share massive files on the Internet. The FCC, led at the time by Republican Kevin Martin, censured Comcast. Comcast then sued the FCC. In 2010, a federal appeals court ruled that the FCC didn't have authority to reprimand Comcast.

By that point, Democrats had taken over the White House -- and subsequently the FCC (by naming a new chairman to the commission). During the 2008 campaign, President Obama said preserving Net neutrality was a key part of his technology platform. So in 2010, the Democratic FCC chairman, Julius Genachowski, worked to turn the FCC's Net neutrality principles into real regulation. By the end of 2010, the FCC, which had consulted with big phone companies like Verizon as well as Internet companies such as Google when drafting the rules, passed the first official Open Internet regulation.

The new rules treated wireless networks differently from older wireline networks and left open the possibility that broadband providers could sell a "fast lane" Internet service. The Open Internet rules were criticized by consumer advocacy groups for being too weak.

The ink on the new regulations was barely dry when Verizon sued the FCC, arguing the agency didn't have the authority to implement the regulation.

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FCC Chairman Tom Wheeler met with protesters outside the FCC and showed his support for an open Internet. Kevin Huang/Fight for the Future

In January 2014, the United States Court of Appeals for the DC circuit sided with Verizon and overturned the FCC's Open Internet rules. But it wasn't a total loss for the FCC. The court upheld that the FCC has authority to regulate Internet openness. The court just didn't like the legal grounds the agency based its rules on.

This brings us to the current debate. In late April, the new Democratic FCC chairman, Tom Wheeler, drafted proposed rules to replace the ones struck down in court. Wheeler claimed this would offer the quickest way to reinstate the rules that had been passed in 2010.

But Net neutrality advocates, such as consumer groups Free Press and Public Knowledge, as well as Congressional leaders, like Sen. Al Franken (D-Minn.), have complained the proposal is still too weak to protect the Internet from ISPs and wireless operators who want to make content providers and consumers ultimately pay for different levels of access. They are particularly wary of the suggestion that broadband providers might offer paid priority services on their networks to companies, such as Netflix or Amazon.

They say this would create a two-tiered Internet, in which services from companies who pay for priority flow freely through the Internet and services from companies that don't want to pay for, or can't afford, premium access get stuck in a slow lane.

These advocates also believe the FCC needs a better legal basis for whatever regulation it passes, and they've made quite a ruckus. That has gotten the attention of FCC Chairman Wheeler and Congress. Wheeler has since revised his original proposal. On May 15, the FCC voted to open the revised proposal for debate.

What will happen next?
At this point, the new rules are simply a proposal. The FCC has published the document in the Federal Registry and is now accepting public comment. The comment period will end July 15. The FCC will then accept reply comments until September 10. To handle the expected flood of responses, the FCC has set up a new online "inbox" to take comments.

After the comment period ends in September, the FCC will review the comments and then draft official rules. This process is likely to take at least a few months. The FCC says it hopes to vote on official rules by the end of the year.

What is in the proposal that the FCC is now considering?
The proposal essentially lays out a framework for what the FCC chairman believes is the best way to reinstate the Open Internet rules. But it also asks a bunch of questions about whether this approach is best or whether other approaches suggested by Net neutrality advocates might be better.

The document itself is expected to elicit feedback and comment. Here's a summary of what's included:

The transparency rule: This requires that broadband providers share performance reports, with information about the speed of their services and what they're doing to manage traffic during times of congestion. This includes reporting any instances of blocking traffic. If they offer a paid priority service, they'll have to disclose those agreements.

The no blocking rule: This rule prohibits broadband providers from blocking lawful content on the Internet for any reason. This means network operators can't block access to a site or service that competes with their own services.

The no "unreasonable practices" rule: This is the vaguest rule -- and the most controversial. While the no-blocking rule prohibits broadband providers from blocking or intentionally slowing down Internet traffic, it leaves open the possibility for broadband providers to offer paid priority services. The FCC has said it might consider allowing broadband operators to create premium services that would ask companies, such as Netflix, to pay to deliver for faster access to consumers.

This is the part of the proposal that's earned the most criticism. I will explain it in more detail in the next FAQ in this series. Chairman Wheeler has said several times the rules won't allow any such services to be offered that are not "commercially reasonable." In other words, the services can't be anticompetitive. And broadband providers must provide the level of service they've promised consumers.

The proposal specifically asks the public to comment on what practices should be considered commercially reasonable and which ones should be considered unreasonable. It also asks whether paid priority services should be banned outright.

Another issue raised as part of the debate is that some advocates want the FCC to reclassify broadband, so that it's regulated like a utility. This would subject the Internet to some of the same rules used to regulate the telephone industry. Most importantly, it would treat broadband like a common carrier, which means network operators would have to make their infrastructure available to everyone.

Wheeler doesn't think this is the best approach, and his proposed rules use broadband's current classification as the legal basis for implementing the new rules. But in the current proposal, he asks the public to comment on whether reclassification or another legal path would be more appropriate for implementing strong Net neutrality regulation.

Check back tomorrow for Part II of this FAQ, which will discuss how the new rules could affect average consumers.

Ask Maggie is an advice column that answers readers' wireless and broadband questions. If you have a question, I'd love to hear from you. Please send me an e-mail at maggie dot reardon at cbs dot com. And please put "Ask Maggie" in the subject header. You can also follow me on Facebook on my Ask Maggie page.

 

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