Federal Communications Commission Chairman Tom Wheeler has adjusted his proposal for regulating broadband Internet service to include a commitment that the agency will seek to prevent network providers from striking in pay-for-performance deals that put non-paying providers at a disadvantage.
The change follows objections to Wheeler's plan raised last week by more than 100 prominent Internet companies and two of the five FCC commissioners. The FCC has to draft new rules governing broadband providers, because a court rejected regulations put into place in 2010.
According to The Wall Street Journal, Wheeler's revised proposal would prevent broadband providers from slowing down online content but would continue to allow them to speed it up, through contractual arrangements for faster delivery.
However, slowing online content becomes unnecessary if the network provider simply offers insufficient bandwidth for specific applications, such as video streaming. If Netflix finds its videos are streaming in the equivalent of standard definition, and a competitor pays extra to ensure its videos can be viewed in high definition, Netflix presumably would have to strike a similar deal to remain competitive.
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The revised draft of Wheeler's rules reportedly seeks comment about whether "paid prioritization" should be banned and whether the broadband service should be regulated like a public utility, a classification that network providers have resisted on the grounds that it would hamper investment and stifle innovation. But seeking comment doesn't alter the proposal's basic endorsement of paid prioritization deals.
US Sen. Al Franken (D-MN) last month criticized Wheeler's initial proposal as misguided in a letter sent to the FCC chairman. "I am deeply disappointed that you are considering rules that would allow deep-pocketed companies to pay for preferential access to Internet Service Providers," Franken wrote in his letter. "Pay-to-play deals are an affront to net neutrality and have no place in an online marketplace that values competition and openness."
Franken expressed concern that endorsing Internet "fast lanes" would harm small businesses and raise costs for consumers.
Last week, Mozilla attempted to offer a middle ground, a proposal to recognize two distinct commercial relationships: "local delivery," the relationship between ISPs and consumers, and "remote delivery," the relationship between ISPs and Internet services, such as Netflix or an individual's website.
Mozilla has asked the FCC to reclassify remote delivery so that it falls under Title II of the Communications Act. This would allow the FCC to leave content services relatively free of regulation and to focus more on maintaining a level playing field for telecommunications services.
Wheeler's proposal has not yet been made public, but a revised draft reportedly could be circulated on Monday. If calls for a delay to accommodate further input go unheeded, the FCC is expected to begin the process of adopting its new rules with the release of a Notice of Proposed Rulemaking on May 15.
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