Opinion: New FCC net neutrality standard leaves ISPs guessing

The Federal Communications Commission is taking grief aplenty for writing a net neutrality order as thick and dense as one of those suburban telephone books that keep showing up, unbidden, on your porch every six months.

On first blush, the order does have a certain David Foster Wallace heft to it. It’s 400 footnote-crammed pages long, including 118 pages of appendices, statements and dissents. Commissioner Ajit Pai’s dissent alone is an epic 64 pages, accompanied by not one but two (count ‘em, 2) summaries.

The new rules themselves, though, take up only eight pages, with the heavy lifting done in seven paragraphs. And on at least one point -- the new “general conduct” standard for ISPs -- the commission may have said too little.

The aforementioned heavy lifting refers to the portions of the new rules that say what ISPs can and cannot do when it comes to handling traffic in the last mile. One paragraph prohibits Internet service providers offering broadband access -- e.g., Time Warner Cable’s cable modem service -- from blocking lawful content, applications, services or devices. A second bars these ISPs from “throttling” lawful traffic based on its content. Three more ban these ISPs from engaging in paid prioritization of traffic, reserving the commission’s right to waive the rule if shown that the practice “would provide some significant public interest benefit and would not harm the open nature of the Internet.”

(As an aside, that ability to waive the ban on paid prioritization is the kind of flexibility that ISPs and their allies say is crucial to preserving innovation in online traffic management. But they want that flexibility to be the default, not the exception.)

Finally, a single paragraph creates the “general conduct” standard that orders broadband providers not to “unreasonably interfere or unreasonably disadvantage” those at either end of the Internet -- the consumers who use it and the content, service and app providers who are trying to reach them. This paragraph is broadly designed to protect against neutrality violations that don’t take the form of blocking, throttling or paid prioritization.

One problem for the commission is that -- unlike blocking, throttling and paid prioritization -- there are plenty of examples today of practices by ISPs that could be described as interfering with or disadvantaging Internet users and content providers. In just about every case, these practices deliver some benefit to consumers in spite of the limitations. The order leaves ISPs guessing about the reasonableness of all of them.

These include such things as caps on a subscriber’s monthly data use, “zero rating” (also known as “sponsored data”) offers that exempt certain services from said data caps, and stripped-down wireless data plans that block access to all but a few sites or services online. Critics say these practices impose unneeded and artificial restrictions on broadband access, discourage ISPs from investing in more capacity and favor some sites and services over others. Defenders argue that they provide consumers more choice, promote competition among ISPs and allow light users of the Internet to avoid subsidizing heavy users.

The order argues that the commission can’t anticipate today what forms that future threats to the open Internet may take. That’s why the majority opted for an open-ended general conduct standard based on Title II of the federal Communications Act (more specifically, Section 201b), which requires that a telecommunications service’s practices be “just and reasonable.”

The commission’s order also includes 10 pages of elaboration on what the general conduct standard will mean in practice. Yet it still punts on the question of whether numerous things ISPs do today, such as data caps and zero rating, constitute unreasonable interference. It leaves the questions it raises about those practices to be resolved if and when someone files a complaint against them.

Here’s what it says about “sponsored data” offers, such as the one by AT&T Wireless, which invites online companies to pay AT&T for the data charges subscribers incur when using their websites or services:

“We are mindful of the concerns raised in the record that sponsored data plans have the potential to distort competition by allowing service providers to pick and choose among content and application providers to feature on different service plans. At the same time, new service offerings, depending on how they are structured, could benefit consumers and competition. Accordingly, we will look at and assess such practices under the no unreasonable interference/disadvantage standard, based on the facts of each individual case, and take action as necessary.”

In one sense, this is the commission’s effort to make the neutrality standard flexible by identifying a form of non-neutral behavior -- sponsored data -- that isn’t banned outright. But by saying, in essence, “We’ll know what’s unreasonable when we see it,” the commission isn’t giving ISPs much to go on.

The order’s pronouncement on data caps is similarly delphic: “Given the unresolved debate concerning the benefits and drawbacks of data allowances and usage-based pricing plans, we decline to make blanket findings about these practices and will address concerns under the no unreasonable interference/disadvantage [standard] on a case-by-case basis.”

While the exact contours of the new standard remain fuzzy, the order does offer a list of factors the FCC will use to decide the complaints about practices that allegedly constitute “unreasonable interference/disadvantage.” The order states, however, that the commission may consider others at its discretion.

The listed factors include the extent to which the ISP’s customers control the disputed practice (the more user control the better), its effect on competition, whether it’s deceptive or unfair (such as “cramming” unsolicited features onto a subscriber’s bill), whether it promotes innovation and investment in broadband, and whether it hinders free expression and communication online. The order also states that practices that treat all applications in the same manner are probably OK, and hints that the same would be true for those that conform “to best practices and technical standards” in wide use online.

The general thrust of the factors, the order states, is to “protect the virtuous cycle of innovation and deployment” in broadband. “This is a rule tied to particular harms,” it states. “Broadband providers, having chosen to provide [broadband Internet access service], may not do so in a way that harms the virtuous cycle.”

That provides a framework for thinking about the standard, although it doesn’t provide real certainty about what the commission will and won’t prohibit. Making matters cloudier still, the order states that the commission will consider one additional issue when weighing complaints against mobile broadband providers’ practices: they must be “consistent with the public interest.”

Fortunately for them, ISPs won’t have to wait for complaints to be filed to find out whether a particular approach will run afoul of the new standard. Borrowing a page from the Justice Department’s antitrust division, the commission invited broadband providers to seek advisory opinions from its enforcement bureau before launching a service that could be seen as non-neutral, such as T-Mobile’s move to exclude music streaming sites from its data caps. The opinions would have to be sought before the service is introduced, however, and the commission could rescind them later.

Follow Healey’s intermittent Twitter feed: @jcahealey