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The FCC’s net neutrality deadline has arrived: What now?

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The future of the Internet hangs in the balance.

The fate of Internet in the United States now hangs off the tip of a pen in Washington, D.C.

After months of heated debate, viral campaigns, deliberate “slowdowns” and record-breaking public responses, the Federal Communications Commission (FCC) is finally set to decide how “net neutrality”—the principle that all data must be treated equally by Internet service providers (ISPs)—should look in the U.S., or if it should exist at all.

Today, Sept. 15, the FCC officially closes its public comment period on its latest net neutrality proposal. The plan enables ISPs to discriminate against certain types of data, in certain circumstances, by charging extra for broadband “fast lanes” between content providers—like Netflix or YouTube—and us, the users.

What happens if the FCC’s plan moves forward? The answer, as you can guess, depends greatly on who you ask.

On one side of this debate stands a vocal minority of the American public, pushing to have the FCC treat ISPs like a public utility (think electricity or phone lines) under a section of the Telecommunications Act of 1934 called Title II. On the other stands ISPs, whose advocates say the new “fast lanes” revenue stream will help companies like Comcast and Verizon build innovative new networks. Moreover, they say, treating broadband like a utility would be a nuclear bomb on their industry—and everyone, they say, will suffer for it.

The response from the public to the FCC’s new proposals has been truly unprecedented. As of Sept. 12, the FCC told the Daily Dot it had received more than 1.7 million comments from the public on net neutrality—300,000 more than it received when Janet Jackson suffered a now-infamous “wardrobe malfunction” while performing at the 2004 Super Bowl. 

A Sunlight Foundation analysis of the available comments, carried out in early September, suggests that more than 99 percent of them were strongly in favor of net neutrality—and that, despite the record-breaking numbers, a lower proportion come from organised letter-writing campaigns than normal.

In addition to this grassroots activism, Internet companies have also been busy—open letters cosigned by some of the biggest companies on the Internet have petitioned the FCC to ban fast lanes, and the recent “Internet Slowdown Day,” aiming to envision what an Internet without net neutrality may look like, was contributed to by more than 7,000 different companies.

All in all, it’s very clear that the debate has touched a nerve for hundreds of thousands of Americans. But despite the scale of the public response, there remains the possibility that efforts to have strong net neutrality protections enshrined in law will fail. So, what happens if it does?

Freed of the burden of having to treat every packet of data on a network as identical can only be a good thing, ISPs say, and will encourage new ways of helping consumers access apps and information online. 

To see this future, the cable companies argue, we must look to the past. The current debate over net neutrality flared up after a court struck down the FCC’s 2010 ban on “paid prioritisation”—the fancy name for “fast lanes”— because the Commission tried to impose the regulation using the wrong law. The last several months should be taken as an example of how the future will look if the calls for net neutrality are ultimately rejected, the argument goes. 

“Prioritization agreements are legal now,” Daniel Lyons, a Boston College telecommunications law professor, told the Daily Dot, “and yet we do not see harmful practices in the marketplace.”

As such, in Verizon’s comments to the FCC in July 2014, they insisted that this debate is much ado about nothing, arguing that “neither Verizon nor any other broadband providers of which we are aware has introduced any form of paid prioritization arrangement to date, nor expressed a public interest in doing so.”

“Prioritization is potentially useful in particular contexts—where for instance, there is a need for especially low latency,” Verizon goes on, but “it does not provide much benefit for most Internet traffic.” The question as to what might constitute requiring “especially low latency” (Online gaming? Video streaming?) remains unclear.

Somewhat contradicting this stance, however, is AT&T’s filings to the FCC in March, in which the ISP openly promotes paid prioritization and “fast lanes” as comprising part of a “virtuous cycle that enables the development of innovative new services while at the same time spurring network infrastructure investment.”

Regardless, to listen to the many prioritization proponents, the issue is overblown, and the prospect of “slow lanes” and “fast lanes” is a boogeyman detracting from the real issue at stake: Regulation. 

“Don’t Break The Net,” a viral anti-net-neutrality campaign led by the libertarian TechFreedom group, characterises the push for Title II classification as saddling the Internet “with price controls and other heavy-handed rules from a thankfully long-gone era.”

TechFreedom President Berin Szoka tells the Daily Dot that the current debate is being driven by a “hardened fringe of activists,” who are steering the conversation towards “a radical reshaping of telecom policy.”

“Title II won’t do what net neutrality hard liners think it will,” says Szoka. “But Title II would create a host of problems for the Web companies it’s claimed it would protect.”

Instead of pushing for Title II, net neutrality opponents argue, the regulators should step back, and Internet users will reap the benefits. 

“There is a possibility that ISPs could exploit their position in the Internet ecosystem for anticompetitive reasons, as net neutrality supporters believe is likely,” says Lyons. “But it’s also possible that Apple can exploit control of the App Store in the same way. There are many potential choke-points at which a company might do consumer harm, but we have an antitrust law in place that policies against such practices.”

USTelecom, the industry lobbying body, echoes Lyons’s anti-regulation mantra. 

“There are clear incentives for broadband providers to ensure that their customers can access the Internet in a timely and expedited way,” a USTelecom spokesperson told the Daily Dot, pointing to the already-high level of provider-switching (around 30 percent annually) as evidence that consumers are prepared to switch if they feel their connection is being tampered with.

If the ISPs are optimistic about a world without net neutrality, the companies that use the Internet are anything but. More than 100 companies—including household names like Google, Microsoft, Twitter, eBay and Netflix—have written an open letter to the FCC, strongly condemning the possibility of paid prioritization. 

The potential for cable companies to “discriminate both technically and financially against Internet companies and to [be able to] impose new tolls on them .. [would represent] a grave threat to the Internet,” the leader reads.

Brad Hunstable, CEO of Ustream, one of the signatories to the open letter, says that the FCC proposal will force Internet-based businesses choose “applications and ISPs that have resolved the complexities of priority lanes system,” he tells the Daily Dot. He adds that it would be like having “to choose between power companies that provided different voltages according the the electrical devices you planned to run.”

Hunstable suggests that this complexity may filter down to ordinary consumers. If the apps and services you use only opt for prioritization with some companies, he asks, “will it be necessary to maintain two different Internet service providers into your home, just to ensure you always have access to the services you need the most?”

Looking at the broader picture, Hunstable believes “fast lanes” will cut out some Internet-based startups that lack the capital to pay for better access. And what about the the ISPs’ claim that they’ll reinvest new “fast lane” revenue back into the ecosystem? Hunstable seems dubious.

“Theoretically, ISPs can reinvest the additional revenue they gain from charging for special lanes into better service,” he says. “Of course, it’s possible that some will simply retain the additional profits for the benefit of their shareholders.”

Mikel Cavia, co-founder of delivery-management startup Addy, is even more pessimistic. The failure of net neutrality efforts and implantation of prioritization would make it “difficult for us to scale our business in a predictable way,” he says, “given that we will not be be to determine at which point our traffic volume would reach a large enough size that we would not be subject to extortion from the various gatekeepers.”

Cavia believes that, for consumers, “fast lanes” will turn the Internet into a “poorly engineered cable box where most channels are pay-per-view,” and that “users with fewer means will have a significantly degraded experience, and ultimately their chances of joining the digital economy in meaningful ways will be heavily diminished.”

As an attorney who specializes in net neutrality issues, Marvin Ammori fears for what the FCC’s proposal means for the digital ecosystem. 

The ISPs will “congest connections to their lines and charge a few giant companies for uncongested access,” he argues. This, he says, will have negative effects for ordinary Internet users. “Online video and real-time calling won’t work as well, nor will competitive payment providers—see how AT&T treated Skype and how the mobile providers treated Google Wallet.”

“Essentially, the carriers will impose a private tax on the top businesses in industries across the economy and will bias the network against new innovators and nonprofit speakers and individuals as a result,” says Ammori. “It’ll be bad.”    

Michael Beckerman, President of the Internet Association—a coalition of technology companies united in their support for net neutrality—told the Daily Dot that “segregating the Internet into fast lanes and slow lanes will distort the market, discourage innovation, and harm Internet users. Consumers expect access to the entire Internet at the speeds they pay for, both on their mobile connections and at home.”

But could companies simply refuse to pay for “fast lanes” altogether? If ISPs found themselves facing a united boycott, then could net neutrality come about in an ipso facto manner anyway? The Daily Dot put this question to a number of organizations that signed the open letter to the FCC expressing “support for a free and open Internet.”

Encrypted data cloud platform Lucipher was among those who promise not to pay for “prioritization”—“Yes, we will refuse,” a spokesperson told the Daily Dot. Likewise, the CEO of domain name service Misk.com, Nitin Agarwal, says they will refuse to pay, arguing the cable companies are “trying to get away with charging twice for a service they’re already being paid for by their subscribers.” Telecom consultancy Rewheel was another company who said they would not pay for fast lanes, or “to avoid broadband speed reduction… “under any circumstances.”

However, for some companies, especially with ones with data-intensive businesses, such a pledge simply isn’t feasible—no matter how strongly they care about net neutrality. 

“It’s funny, it would be so easy for us to make grand statements about how principled we are in the management of our content business,” said telecoms company Tucows marketing rep Michael Goldstein. But “if we found ourselves in a situation where service providers were taking money from our competitors and we had to choose between standing on principle or competing fairly, I suppose we would have to compete fairly.”

“We would have no choice. But, like Netflix, we would absolutely condemn the practise as we reluctantly handed over the money.”

Thomas Stocking from the domain name registrar Gandi said that while they hoped they wouldn’t have to, “we might be forced to pay if that was the only way to serve our customers fairly.”

“Telecom and broadband providers [have] already tilted the regulatory playing field in their favor,” Stocking added, “and they are already using it to extract capital from all participants… What we are advocating for is the policy of a level playing field.”

When asked, Ustream reiterated their opposition for net neutrality as “bad for consumers and bad for businesses,” but said the streaming platform is “committed to taking any reasonable steps to ensure great quality delivery continues for all viewers on Ustream.”

The ISPs may protest through all of this that no, they don’t intend to bring in prioritization (except in very limited circumstances)—it’s the burden of additional regulation they want to avoid. But some, like AT&T, have made it clear that they see the ability to charge for fast lanes and prioritization a highly desirable functionality.  

Page 24 of AT&T’s March filings to the FCC.

Yes, despite ISPs’ previous statements before the outcry, they could choose to exercise restraint and not pursue widespread prioritization arrangements. But a failure to reclassify the Internet as Title II utility would open the door to that possibility in future years. 

In the end, the debate may come down to one defining dynamic: The overwhelming majority of companies that use the Internet strongly support net neutrality—and the companies that oppose it almost all stand to profit financially from it failing. 

So, who do you trust less: Comcast, Google, or the FCC?

Additional reporting by Eric Geller.

Photo via Randy Pertiet / Flickr (CC BY 2.0) | Remix by Rob Price

Rob Price

Rob Price

Rob Price is a technology and politics reporter who served as the U.K.-based morning editor for the Daily Dot until 2014. He now works as the news editor for Business Insider, and his work has appeared in Vice, Slate, the Washington Post, and the Independent.