Mozilla proposes a middle way in the net neutrality debate

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The concept of net neutrality has been a hot topic in recent weeks, following on the heels of statements by US Federal Communications Commission (FCC) Chairman Tom Wheeler that have been widely interpreted as hostile to net neutrality. Many tech-industry players came out against Wheeler's statements, and called instead for the FCC to reclassify Internet service as a commodity that would be protected against discriminatory prioritization schemes and other deals. But Mozilla proposed its own solution—one that involves a re-examination of Internet service itself, but that might have advantages over the more broadly advocated reclassification proposal. The essence of Mozilla's proposal is recognition that Internet service providers (ISPs) have a service relationship not just with their subscribers and their networking peers, but with third-party, Internet-delivered businesses as well.

At the heart of the current net-neutrality debate is the concern that "last mile" ISPs—that is, those who sell connectivity directly to residential subscribers—will be allowed to slow down traffic from some Internet companies (such as Netflix) unless those companies agree to pay the ISP a "fast lane" access fee. Noteworthy in this scenario is that Netflix (or another Internet company) does not operate the network connecting its facilities to its customers. The ISP is connected to other networking providers—with whom it does have business arrangements for backbone service or peering connectivity—but it routes the traffic originating from Netflix (and other sites or services) to ISP subscribers simply because that traffic comes over the wire from the neighboring network. Netflix pays for the connectivity and bandwidth its servers require on its side, which may be many network operators removed from the subscriber's ISP.

The issue, then, is that in this scenario, the last-mile ISP is interfering with some traffic and demanding extra fees to deliver it to subscribers, even though those subscribers and Netflix are already paying for the bandwidth that is actually consumed. These additional fees could be used by the ISP to make Netflix a more expensive service than an alternative (for example, DVR-ready cable TV programming also offered by the ISP). And the fee structure could be used to make it more expensive for any new service to start up and compete with the services already getting fast-lane treatment. For example, a new Netflix-like competitor, whose total bit-rate (and, thus, video quality) would always be lower than Netflix's simply because the last-mile ISP throttles that last segment of the network connection for the new company.

The fact that such business arrangements are even possible stems from the way the FCC legally regulates different communications services according to different sets of rules. ISPs have historically been classified as "information services" under the Telecommunications Act of 1996; while there are comparatively few regulations that address what "information service" providers can and cannot do, there are regulations that restrict what "telecommunications services" (such as phone networks) can do, particularly when it comes to discriminating on the basis of content. In 2010, the FCC laid out a set of network-neutrality rules in its Open Internet Order, but in January 2014 the D.C. Circuit Court of Appeals ruled that the FCC did not have the authority to impose many of those rules on ISPs because ISPs are not currently classified as "telecommunications services."

Thus, when word got out in mid-April about Wheeler's proposed new rules, which would allow "commercially reasonable" fast-lane deals, most of the response from net-neutrality advocates focused on convincing the FCC to reclassify ISPs from "information services" to "telecommunications services." That change would essentially clear the way for the Open Internet Order of 2010 to come back in full force.

Of course, one would certainly expect the ISPs to fight against such a reclassification as fiercely as their budgets would allow, since they stand to miss out on lots of revenue they would like to collect. But what makes Mozilla's proposal to the FCC different is that it does not hinge on the information-to-telecommunications reclassification.

Instead, Mozilla's proposal (which is available in full as a PDF document) argues that the current definition of what an ISP does is insufficient. The historical viewpoint has been that an ISP has two classes of business relationships: one with its subscribers, and one with the other network providers it is connected to (peers or backbone networks). Mozilla argues that there is in reality a third business relationship: one between the ISP and remote content providers (i.e., Netflix, Google, and any other service that is offered to the public through the Internet). The ISP's relationship to the subscriber could still be classified as an "information service," the argument goes, but it is offering a "telecommunications service" to the remote businesses:

Re-evaluating the nature of the ISP business is not a small step, of course. Mozilla argues that the prior viewpoint, where subscribers and peering networks are the only relationships involved, is a relic of the earliest days of the Internet, when it was composed of multiple standalone networks, and ISPs routed traffic from (say) the edge of MIT's network to the edge of Stanford's network. Commercial Internet services changed that equation fundamentally:

No doubt, the uses of the Internet have evolved considerably since the early 1990s, but that reasoning alone would not likely be sufficient to make the FCC adopt a substantially different policy. Consequently, much of the proposal is devoted to showing that providing access to "remote delivery services" (which is the term used in the proposal for Internet businesses in the abstract) meet the specific definition of "telecommunications service" already set out by FCC rules and the Telecommunications Act of 1996.

Specifically, the proposal says, telecommunications services "must include a 'transmission'; it must be offered 'directly to the public'; and it must not include, or must be separated from, any additional information services." Internet traffic is certainly transmitted, the proposal says, and Internet businesses certainly offer their services directly to the public (regardless of how the public accesses the Internet).

Whether or not Internet businesses "integrate" with other information services is not as straightforward, but the proposal argues that the FCC has historically stated in the past that the "information service" component of the ISP business referred to particular features, "specifically domain name resolution, email services, hosting services, and other featured services." The remote services under consideration (like Netflix) do not handle these duties.

The final aspect of Mozilla's proposed change is that, by not requiring the reclassification of ISPs as telecommunications services, its proposal would allow the FCC to address net neutrality without overturning the agency's regulatory precedents and thus triggering the re-examination of the existing regulations and policies that govern ISPs. That is a practical argument, but for a government agency, not throwing decades of existing regulation into limbo is probably an appealing idea.

On May 6, the Mozilla blog post was updated to clarify a few questions that had circulated in the wake of the proposal's publication. For example, the proposed change would not place ISPs' peering and interconnection business under the "telecommunications service" banner. ISPs would still be permitted to create "fast lane" arrangements not in the "last mile," so content-delivery networks and various quality-of-service deals between providers would still be permitted. The proposed change would also not introduce any FCC regulation over Internet businesses themselves; it would instead protect them from unfair actions by ISPs.

Mozilla has also set up a wiki page to track the progress of its proposal. It is hard to say what the future holds, though. Interesting though the proposal may be, there is scant evidence available suggesting that it has swayed the FCC. The FCC is slated to vote on its new rules on May 15. For his part, Wheeler has already responded to the public backlash, indicating that the wording of the rules put forward to the FCC will see some sort of revision from what was disclosed in April. In particular, reports are that the revised rules would impose an outright ban on "fast lane" deals that prioritize content produced by an ISP's subsidiary.

The specifics, however, have yet to be seen. Moreover, whatever rules the FCC votes on—and however that vote turns out—recent events have shown that opponents of net neutrality will take the FCC to court if they dislike the outcome. At that point, many rulings, appeals, and petitions will surely follow, so it could be years before anything concrete is decided, much less put into action.