Julius Genachowski’s FCC managed to pass their Net Neutrality ruling last week by striking a very delicate compromise.  This compromise was needed to get the necessary votes from the FCC commissioners who wanted an outright ban on Paid Prioritization or “access fees” (the existing practice of broadband providers charging businesses for direct access to their networks), and to avoid an immediate fight with the broadband providers who want to protect their existing business models and property rights.  The problem with this compromise is that it resulted in an utterly incoherent ruling that relies on arbitrary definitions and a sheer disregard of the facts and the record.

The FCC satisfied both sides enough to get its ruling passed by a 3-2 margin by declaring Paid Prioritization legal and illegal at the same time.  To pull off this amazing feat of hair splitting, the ruling gave two arbitrary names to Paid Prioritization services calling one legal and the other one not.  Almost in a strange twist of irony, the paragraph defining Paid Prioritization as legal is paragraph 67, and the paragraph declaring it illegal is paragraph 76.  I can’t think of anything that better symbolizes this massive flipflop and contradiction.

Paid Prioritization as “interconnection” or “Paid Peering” is legal

In paragraph 67 (under the footnotes), the FCC declared “existing arrangements for network interconnection, including existing paid peering arrangements” to be legal so long as they are not offered under the threat of blocking.  It’s also noteworthy that Content Delivery Networks (CDNs), which also rely on existing paid peering agreements, were also exempted from the ban on Paid Prioritization.

Nevermind the fact that paid peering and interconnection is absolutely indistinguishable from Paid Prioritization.  For a substantial re-ocurring fee, Paid Peering and settlement-based Interconnection services provide their premium customers with packet priority at the expense of non-peered and non-interconnected traffic.  Furthermore, it provides a fee based exclusive “fast-lane” access to hundreds to thousands of 10-gigabit ports while bypassing the more congested Internet transit connections.

Peering and Interconnection services will be left alone for now because the FCC probably can’t get away with breaking nearly all existing Internet streaming video services, but they’re close to doing this and giving the Net Neutrality extremists what they’ve wanted all along.

Paid Prioritization that is “enhanced or prioritized” is illegal

In paragraph 76, the FCC declared “Paid Prioritization” or “Paid Prioritization with a third party” (this concept of “third party” was never defined) to be illegal.  It gave the following four justifications to do this but none of them made any sense.

1. Paid Prioritization represents a departure from existing Internet practices and the record contained no examples of Paid Prioritization in practice.

But that’s clearly not the case because the entire Internet operates on reoccurring fees (for consumers and for Internet “edge” providers of content and services) that are commensurate to service levels.  CDNs for example have existed since the beginning of the broadband era at the end of the 1990s which is all most Internet users have ever known, and that represents a Paid Prioritization service since the beginning of the modern Internet.

The FCC also blatantly ignored the record of known Paid Prioritization agreements by stating that the record contained no examples of them.  AT&T this year filed official comments which became a part of the FCC’s public records stating that they had hundreds of Paid Prioritization customers.  Are all those customers and AT&T now violating FCC regulation?  I guess so long as they call it “interconnection” or “peering”, it’s legal but if it’s called a “prioritization” or “enhanced” service, it’s not.  But that’s a ludicrous regulatory position.

2. Since some Internet edge providers of content and services can’t afford these Paid Prioritization services and will be at a competitive disadvantage, these services should be illegal.

Based on this logic, we can outlaw data centers, high performance server hardware, and the systematic discrimination against job candidates who don’t come from elite universities with top grades.  While we’re at it, we should also make copyright illegal since that discriminates against companies that can’t afford them, and content licensing is a far bigger economic challenge than Internet access fees prioritized or not.

3. Non-profits can’t afford these Paid Prioritization services either, so no one else should have them.

Aside from the fact that this is just a regurgitation of rationale number two, it’s also no more valid than the previous argument.  What type of service would be legal if they all had to be free to “non-profits” which are really no different from commercial entities other than the fact that they get tax exemption privileges?  There are plenty of “non-profits” that have budgets that make startups and even the largest private companies drool.

Furthremore, non-profits and anyone else who can’t pay gets to use Paid Prioritization for free because companies like Google and their competitors see value in non-profit content or any content for that matter.  Google or companies like Vimeo will offer free video hosting and even pay the content provider for a license to use and possibly monetize that content.

4.  Broadband providers might limit the quality of their open Internet services to promote their enhanced and prioritized services, and/or to protect their existing video businesses (e.g., Cable, U-verse, or FiOS).

This is yet another broad definition that could virtually be applied to any product or service.  One could make the same argument to outlaw first class and business class flights and priority delivery on the US Postal Service or FedEX and UPS.

The reality is that businesses rely primarily on their standard tier customers for the bulk of their revenue.  While the premium customers give larger margins, there simply aren’t enough of them to keep a business viable.  So if a company degrades their standard tier, they risk losing their most valuable customers and no company is that dumb.

This last reason given by the FCC majority also contains an element of anti-trust, but was it my imagination that the FTC had to go to court to try and force Microsoft to stop bundling Internet Explorer?  When did the FCC suddenly get the power to arbitrarily and unilaterally ban an existing class of services, especially when Congress wants the FCC back off and when the public clearly doesn’t support Net Neutrality regulation?

[Cross-posted at Digital Society]