Don't be surprised if, sometime soon, you get a notice from your Internet service provider (ISP) announcing a new Internet-access pricing scheme that looks suspiciously like how you pay for cable TV.
Many popular websites will remain free. But if you want to access, say, Hulu or Netflix or some other movie- or TV-watching site, you may have to pay a premium. Or, to watch ANY movie or TV show, you may have to pay-per-view your ISP on top of what the movie site charges.
Verizon is suing the FCC for the right to control — and charge — how they deliver the Internet. ISPs could charge for basic, premium and PPV access, to charge us more to get some sites faster, to charge sites for delivering their content to us faster, to charge new websites for getting to subscribers to begin with, or throttle or block access to sites it doesn't like or those who don't pay to get accessed.
Even though the case — currently being adjudicated by the D.C. Circuit Court of Appeals, the last stop before the Supreme Court — will be judged on technical legal grounds, the repercussions could mean the end of so-called "net neutrality."
What Is "Net Neutrality" Anyway?
In the famous words of Inigo Montoya, "let me explain — no, there is too much. Let me sum up."
You've heard the Internet compared to a "superhighway"? A more appropriate roadway metaphor is a freeway — you can ride on it for free. You can even build businesses (websites) along this Internet freeway without paying rent to the freeway operators.
But ISPs aren't profiting (enough) from this freeway paradigm. Because they built the physical network through which we get online, these so-called "gatekeepers" believe they have the right to set up tollbooths on our Internet freeway, and that the FCC doesn't have the authority to stop them.
Would a decision, likely coming early next year, for Verizon be bad for Internet surfing consumers and a decision for the FCC be a good outcome for Internet surfing consumers?
Yes. Uh, no. Well, maybe.
Two Sets Of Rules
Lawyers with knowledge of the case were unclear of where we go post a Verizon v. FCC decision.
First off, this case isn't "whether the [FCC] rules are a good idea or what they accomplish," explains Mitch Stoltz, staff attorney for the Electronic Frontier Foundation, "but whether the FCC had the authority to make these rules."
From a strict legal point of view, Verizon is probably right — the FCC's net neutrality grasp likely has exceeded its Congressionally-authorized regulatory reach. After all, in 2010 this same DC District Court found the FCC couldn't keep Comcast from throttling BitTorrent.
Verizon also claims FCC net neutrality rules are discriminatory.
It seems the FCC has two different sets of net neutrality rules, one for wired gatekeepers such as cable monopolies, and another for wireless gatekeepers — cellular carriers, which, not un-coincidentally, include wired gatekeepers Verizon and AT&T.
The FCC may have net neutrality sway over wireless gatekeepers since the commission allocates wireless spectrum, but not over wired gatekeepers since their data is physically delivered.
"Wireless rules are weaker," Stoltz further expounds. "They allow a broader range of what people consider discriminatory rules, a source of criticism of those rules by vocal champions of net neutrality."
And having two sets of rules for two different types of ISPs, Verizon says, is just plain wrong. My poor sweet baboos.
In all events, a ruling for Verizon as a wired gatekeeper may mean that wireless carriers can — no, wait… A ruling for the FCC means Verizon can't…er, what I mean is…
One thing's for sure: both wired and wireless gatekeepers want to set up tollbooths, and that's bad.If court decisions can't stop these toll-collecting gatekeepers, what will?
Free Market Solutions?
"Verizon would probably have the legal right to create tiers of service," if the court sides with Verizon explains Stoltz. "But having the right to do it and being able to do it in the competitive market are two different things."
I am not so sanguine in the market to self-correct against ISP anti-consumer practices. After all, market forces that force consumer-friendly policies require competition. And market competition is one thing the ISP industry sorely lacks.
There are anywhere between 82.4 million and 87.9 million wired broadband Internet subscribers in the U.S. The top eight wired ISPs — Comcast, Time Warner Cable, AT&T U-verse, Verizon FiOS, CenturyLink, Charter, Cox and Cablevision — service around 63 million of these broadband subscribers, or between 72 and 77 percent.
In most cases, each of these ISPs is the only Internet access game in town. Here in New York City, for instance, it's Time Warner Cable (TWC). Yes, there's Verizon FiOS, if you live in a neighborhood where it's available. It's not in mine. (Nor in mine — Dep. Ed.)
If TWC decides to throttle Netflix or Hulu or Amazon Prime to stifle content competition from these websites, who's to stop them? And since Verizon is the plaintiff in this FCC-doesn't-have-the-authority-to-stop-us case, it's hardly a bulwark against cable-companies-gone-wild.
Would TWC or Comcast or Verizon care what we think? Nope — they're already the most hated companies in America.
Stoltz also believes there would be a public outcry à la the SOPA/PIPA protests and subsequent sane Congressional action. But SOPA/PIPA was a comparatively simple case of stopping cyber censorship, a danger everyone could get their heads around (well, almost everyone.
Net neutrality, however, is not nearly as simple or as sexy as censorship. Net neutrality could be neutralized like the whole frog/boiling water anecdote — if implemented gradually enough, we'd never notice we were being shafted by Big Internet until it was too late.
A Laughable Solution
Ultimately, the only way to keep these greedy gatekeepers from setting up web tollbooths and turning our Internet access into a cable TV model is:
I'll wait until you stop laughing.
Yes, legislation that either grants the FCC the authority to make specific net neutrality rules, or to make the rules itself and grant the FCC the authority to enforce them, would solve the net neutrality problem.
Go ahead, laugh it up. Personally, I'm crying.
Based on recent partisan-partitioned non-performance, it's doubtful these corporate-elected clowns (it's astounding congress people just don't don NASCAR-like suits swathed in sponsor patches) will buck what Big Internet wants.
So, prepare to bend over and pay up.
(For more torturous tortious Verizon v. FCC details, check out this Wired column by tech lawyer Marvin Ammori.)