Do not break the Internet. That very real risk is why the Federal Communications Commission should delay a vote scheduled for Thursday that could lead to a messy, segregated Internet of fast lanes for deep-pocketed companies able to pay and slow lanes for everyone else. There has to be a better way forward than a proposal that would create winners and losers in an information delivery system whose greatest asset is equal treatment regardless of who provides the content.
The debate centers on the concept of "Net neutrality." The principle is that Internet service providers such as Verizon and Time Warner should simply provide a pipeline between content providers such as Netflix, eBay, Facebook and Amazon and Internet users sitting at home, treating all information the same — whether it's a cute cat video or historical documents from the Library of Congress. Net neutrality suggests that because Internet subscribers already pay for the pipeline, the service provider should honor requests for any legal content the subscribers seek. It's double-dipping and discriminatory to erect a tollbooth at both ends of the pipe, charging the content provider for the information to enter the pipe and charging the subscriber to get the content at the other end.
The FCC has lost twice in court on recent Net neutrality cases and is struggling to find a path that will keep the Internet open but survive court challenges. Chairman Tom Wheeler, who says he favors Net neutrality, is proposing new rules but has been criticized from all sides.
Originally, Wheeler suggested a pay-for-speed Internet lane would be okay because the FCC would watch carefully to make sure that Internet service providers didn't use that as a club to beat competitors. But scores of Internet companies including Facebook, Amazon, Google, eBay, Microsoft and Netflix wrote to the FCC to argue that approach would be "a grave threat to the Internet" by allowing "Internet service providers to discriminate both technically and financially against Internet companies and to impose new tolls on them." So Wheeler has been tweaking his ideas in advance of Thursday's vote. That vote would not be final. It would only open up a comment period on the proposal — whatever it turns out to be.
But the very idea that such a fundamental change remains a work in progress so close to the vote should be enough to set off alarms that this proposal needs more work. One possible solution has been offered by Columbia law professor Tim Wu, who coined the term "Net neutrality" years ago. He points out that the FCC, under current law, could regulate Internet service providers as utilities, which would be a much stronger rule than they face now. The service providers certainly don't want that to happen.
In fact, the court that ruled most recently against the FCC noted that the commission had failed to classify Internet providers as utilities, which would have given it much more regulatory power. The FCC lost because it invoked an auxiliary part of its rulemaking power, which defines service providers merely as information services — a much lighter regulatory touch.
Wu's suggestion is simple and effective: Use the FCC's auxiliary power to effectively ban fast lanes and schemes that degrade the speed for content providers who can't pay up. But make clear the FCC has the authority to regulate Internet service providers as utilities if they protest too much.
Without overregulating the Internet, this could ensure that it remains open to small startups, that Internet service providers could not act as quasi-monopolies and forcibly collect payments at both ends of their pipelines, and that Internet service providers could still make plenty of money to pay for necessary upgrades to keep the Internet fast and fair into the future.
By delaying Thursday's vote, the FCC chairman would create enough time to present a solid plan to his fellow commissioners based on Wu's ideas that would restore an Internet that treats all information equally.