Out of Control

(a) DUTY OF BROADBAND SERVICE PROVIDERS.--With respect to any broadband service offered to the public, each broadband service provider shall— (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet; (2) not prevent or obstruct a user from attaching or using any device to the network of such broadband service provider, only if such device does not physically damage or substantially degrade the use of such network by other subscribers; (3) provide and make available to each user information about such user’s access to the Internet, and the speed, nature, and limitations of such user’s broadband service;

These provisions are minimally intrusive. And, while in place to nominally protect consumer interests, it is also against the service provider’s interest to violate them. A service provider who actively blocks access to the entire wealth of available Web sites without consent of the user will fast lose customers. Who wants to do business with a company that goes out of its way to diminish the Internet experience?

A real-world example exists. Back in the 1990s, just as the first browsers, such as Netscape Navigator, were making the Internet popular, America OnLine introduced a subset of Internet services as part of its dial-up service. Figuring that the Internet and Web was somewhat overwhelming to the “non-technical” types it sought as customers, AOL adopted a “walled garden” approach. AOL users were given a proprietary browser designed to keep them within the confines of an AOL-defined Internet. AOL, in turn, signed agreements with content providers who were promised better access to the AOL user base. AOL also created user groups confined to the AOL subscriber base.

This strategy failed. Most users, even though they may not have been techhies, understood that AOL was hindering their Internet navigation. AOL soon got a reputation as a second-rate Internet service provider—a perception that stuck well into the current decade.

The next group of provisions introduce government intervention into the economics of the Internet.

(4) enable any content, application, or service made available by the Internet to be offered, provided, or posted on the basis that— (A) is reasonable and non-discriminatory, including with respect to quality of service, access speed and bandwidth;

This can be construed as the “No deals with Google” rule. This would prohibit any service provider from offering a higher degree of quality of service or other differentiation in terms of speed, bandwidth or service to a third-party applications provider.

(B) is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or services made available via the public Internet into the network of such service provider;

This is the converse of 4 (A). This clause essentially states quality levels offered to one must be offered to all. Together, 4 A and B relegate the carrier networks to being “dumb pipes,” prohibiting them from using any of their own network technology from adding value to customer traffic.

(C) does not impose a charge on the basis of the type of content, applications, or service made available via the Internet into the network of such broadband service provider;

This explicitly prohibits any attempt by service providers to monetize the service providers’ ability to manage and prioritize applications as they move across the network.

(5) only prioritize content, applications, or services accessed by the user that is made available by the Internet within the network of such broadband service provider based on the type of content, applications, or services and the level of service purchased by the user, without charge for such prioritization;

This is the “end-user pays” clause. In almost direct contradiction to the preceding clauses, it coyly recognizes that prioritization of certain applications is desirable. But it requires carriers to places the any cost of the management needed for the delivery of theses services squarely on the shoulders of the user. Since there can be no differentiation in terms of quality, the only differentiation left is access speeds – 1 Mb/s, 3 Mb/s, 6 Mb/s and so on.

(6) not install or utilize network features, functions, or capabilities that impede or hinder compliance with this section.

This can be read as a prohibition on service providers against making their networks work better, whether ior not they choose to monete their investment. Government is dictating what carriers can and cannot do with their private property.

And this is the problem with the entire net neutrality policy. The American system of free enterprise generally respects private property and the freedom to invest, and to realize a return on investment through the voluntary transaction that yields value to both parties.

The Internet is not, and never has been, neutral. Nor will a network neutrality policy make it so. All it will do is place legal limits on the quality and performance of Web-based services. Congress won't serve the users or Internet economy if it goes out of their way to remove an entire group of companies from the information value chain.