Internet Express Lanes: Who Pays the Toll?

BY Justin Torres



Major Internet service providers are lobbying to overturn FCC rules which prevent discrimination of traffic across the internet. Their intentions are to charge companies and, possibly, end users for priority access to popular services such as Facebook or YouTube.

The debate on whether some 1s and 0s are worth more than others will come down to one question: who foots the bill?

A Recent History of Net Neutrality
In 2010, the Federal Communications Commission Open Internet Order was accepted as a way to define exactly what was expected from internet providers. The fundamental principle of internet neutrality states that all traffic should be treated the same, regardless of its origin, protocol, or destination.

The rules outline some basic instructions to providers; providers must disclose their network management practices, and they must not blocking any service which is legal and doesn't cause harm to the network or other users. The Open Internet Order was, at its core, a vague umbrella that defined and covered an “open internet” for functional purposes.

In January of this year, Verizon sued the FCC, claiming that the Commission has no right to regulate how broadband companies manage their networks because they are classified as "service providers," not “common carriers" (a term used to describe telephony companies). When a Washington, D.C., circuit court ruled in favor of Verizon, wired communication companies started to behave like mobile providers, putting more stringent network management practices into play.

After the ruling, AT&T, Comcast and Verizon all began throttling Netflix’s connection to customers, slowing down speeds to roughly 1mb/s (Netflix recommends 5mb/s for HD video). Only after the streaming giant made paid peering agreements with each of the providers did users slowly start to see their speeds improve -- a 30 percent increase, in Verizon’s case.

The debate on the FCC's role and the scope of its oversight has escalated sharply in the past year, with strong arguments for both the increased oversight of cable companies and the loosening of regulation over service providers. It’s understandably an issue of intense debate. The Internet is a fundamental part of our daily lives, and it’s about to change.

Arguments Against Net Neutrality
The main opponents of net neutrality are the biggest internet service providers (ISPs) in the country: AT&T, Comcast, Cox, Time Warner and Verizon. Standing alongside the ISPs are manufacturers of enterprise networking hardware, such as Cisco. These companies have taken the stance that running the internet is becoming more expensive, and tech companies should be responsible for some of that cost.

Hundreds of petabytes are transferred over the internet daily in the form of HTTP, streaming music and video content, and bittorrent. The Internet was not originally built to carry the number of cat videos uploaded and shared each day, so it’s been upgraded over the decades to try to meet demand. It's a very costly endeavor to run and maintain fiber optic trunks across continents and ocean floors.

By introducing a tiered system, companies like Google and Netflix would pay to deliver their content more reliably to users. Dedicated connections to the most bandwidth intensive services would alleviate stress on lower-priority traffic. This system of funding could also lead to smarter investments in the internet's backbone, making hardware improvements where they are most needed.

Telecommunications and cable companies have spent trillions of dollars constructing the physical layer of the internet. To help with the burden of that cost, they are trying to remove unnecessary oversight and regulation to find new revenue streams and sustain the cost of maintaining the hardware that powers the internet.

Arguments for Net Neutrality
Supporters of net neutrality include just about everyone else. In May, the FCC opened for comments on the issue of the open internet, and received over a million responses from the public -- more responses than they have ever received on any of its rulemaking. The flow of feedback even knocked the website offline multiple times.

The biggest concern with the proposed changes is that, with them, ISPs would take control of the entire situation. Removing the rules outright would give legal precedent for cable companies to slow down connection speeds to services that don’t pay for fast-lane access.

This would hugely impede innovation and work against startups and small businesses that wouldn't be able afford the speeds a tech giant could. ISPs would be able to cripple any company that tried to offer services that competed with their own offering, or for any reason at all.

Privacy will also take a backseat if net neutrality rules are thrown out. In order for service providers to distinguish which bits of binary take priority, deep packet inspection (DPI) hardware that is currently reserved for lawful interception will be applied to all traffic. DPI has the capability to look inside the content of packets even if they have been encrypted, which many consider to be a direct violation to their right to privacy.

Advocates for net neutrality are looking to keep and update the existing FCC rules, and they are pushing to have cable companies reclassified as common carriers. Reclassification could also bring increased competition, as companies could lease the infrastructure of existing networks, much as telephony networks are used by various DSL providers.

Net Neutrality and Multi-Industry Impact
Much of the ink spilled on the topic of net neutrality has been focused on large content providers like Netflix and Amazon. But a tiered internet has the potential to affect a wide variety of industries. Anyone engaged in online marketing is highly dependent on the easy distribution of videos, podcasts and webinars. Both small and large firms take a level playing field for granted — compelling content from any source can reach a large audience. Differences in speed for those able or willing to pay could affect the dissemination of well-tested, established marketing strategies.

Successful content marketing also relies on the ability for firms to engage in unfettered speech. Firms can currently focus on providing value (or entertainment) that strikes a chord with prospective clients without giving a second thought to the activities of their service providers. If service providers can disrupt the flow of content, they could choose to slow the delivery of items that conflict with their interests.

The potential for ISPs to make life difficult for startups could block access to new technologies for firms and other small businesses. Attorneys have benefited from many new tech innovations. Would a tiered internet make it more difficult for smaller companies to create new legal technology solutions?

Necessary and Inevitable Change
Comcast alone has spent $18.8 million in lobbying to remove FCC regulations that require the company to treat all traffic the same and to argue against classification as a common carrier. The ISPs against net neutrality claim they won’t implement changes which hurt websites that don’t pay to access the fast lanes, but many consumers have a hard time believing them.

According to the latest ACSI survey, Internet service providers have extraordinarily low satisfaction ratings, with Time Warner garnishing a score of 54. That’s lower than any bank, airline or car company (including GM, which recalled nearly 28 million cars worldwide in 2014 for faulty ignitions switches that caused at least a dozen fatal accidents).

High-definition streaming sites like Netflix and Amazon give users access to huge libraries of content on demand, which in turn causes a reduction in TV subscriptions, which are provided by the cable companies who provide the connection these services rely on. It makes sense they would try to recoup their costs somehow, but they should not try to do so at the cost of fixing an internet that isn’t broken.

Justin Torres

Justin Torres is a staff contributor to Bigger Law Firm Magazine, Chief Programming Engineer with Adviatech, and oversees all of the company's security protocols.


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