The Net Has Never Been 'Neutral'

Regardless of the FCC's new rules, big websites have always been able to pay for better service.

The Internet is about to mutate from an egalitarian utopia into a corporate hellscape.

At least, that's the argument from some people rallying opposition to the Federal Communications Commission's proposal for weaker net-neutrality rules.

The argument goes that the Internet has always been a bastion of equality, a level playing field where all websites load at the same speed without having to pay any "tolls." And the FCC is about to throw all that away.

FCC Chairman Tom Wheeler is pushing new regulations that would allow Internet service providers to charge websites for special "fast lanes," subjecting any website that can't pay to worse levels of service. The proposal would create a two-tier Internet where rich companies can deliver higher-quality videos and other content than everyone else, the critics warn.

"The genius of the Internet is that it allows innovation without permission, not innovation only after cutting a deal with the ISP and receiving the FCC's blessing for it," a group of 11 Democratic senators wrote in a recent letter to the FCC, urging the agency to enact stronger net-neutrality regulations.

"Sanctioning paid prioritization would allow discrimination and irrevocably change the Internet as we know it."

But the truth is that the Internet has never been the level playing field that some seem to believe. Big websites have always been able to pay for faster service — and the biggest ones are already spending billions to get it.

For example, just about all major websites pay for content delivery networks, or CDNs, to carry their traffic. Those CDNs (companies like Akamai and Level 3) build networks of servers around the country to store website data.

That way, a Facebook user in New York City trying to watch a friend's video clip doesn't have to retrieve data all the way from Facebook's headquarters in Menlo Park, Calif. Instead, the user is actually connecting to a much closer server owned by a CDN that Facebook has hired.

A worldwide network of servers helps to speed up websites, ease congestion, and is better able to handle cyberattacks.

"They are a commercial service you have to pay for," Christopher Yoo, a law professor at the University of Pennsylvania, explained. "And it's good for the Internet."

It would be impossible for someone to start a high-quality video streaming site in a garage without paying for some intermediary to handle traffic. The site would grind to a halt as soon as a significant number of people tried to use it.

Small start-ups are nearly always at a disadvantage — and the Internet is no exception. For example, skyrocketing bandwidth bills reportedly contributed to YouTube's decision to sell itself to Google in 2006.

Many of the largest companies like Google, Apple, Amazon, and Microsoft build their own data centers to ensure a smooth service for their users, investing billions of dollars to give their websites an edge over the competition.

The Internet's existing inequities are acknowledged both by advocates and opponents of net neutrality regulations.

Kevin Werbach, a business professor at the University of Pennsylvania, and Phil Weiser, the dean of the University of Colorado Law School, are both supporters of net-neutrality regulations. But in a recent Huffington Post op-ed, they emphasized that there's nothing new about companies paying for better Internet service.

"Saying the FCC action will 'force companies to pay tolls' or 'create a two-tier Internet' makes it seem as though companies such as Netflix and Google currently use the Internet for free. They don't," the professors wrote. "They pay access providers; they pay intermediaries called transit providers; they pay CDNs; and they pay to build or buy their own infrastructure."

Paying to ensure fast service isn't the only way that some websites have an advantage over others.

Search engines, particularly Google, are the main tool that many people use to find information online. Websites at the top of a search page have a huge advantage over sites buried under pages of results. Slight tweaks to Google's search algorithm can make or break a company.

Critics of Google (such as Microsoft and Yelp) argue that the government should impose "search neutrality" to bar Google from favoring its own services — such as Google Maps, Google+, and YouTube — in search results.

Google faced a nearly two-year investigation by the Federal Trade Commission into its search practices. In early 2013, the FTC concluded that there was "some evidence" that Google manipulated its search results to highlight its own services. But the commission chose not to bring charges, saying that in many cases, Google's changes improved the "user experience" by reliably producing more useful results.

The idea of total neutrality is especially absurd for people who access the Internet on smartphones and tablets.

Apple has absolute power over what mobile apps are allowed in its store. Apps can reportedly be banned for being offensive, using too much data, being too glitchy, having small font sizes, infringing on trademarks, or numerous other reasons.

In a recent interview, Jimmy Wales, the founder of Wikipedia, said the Apple App Store is more of a threat to the openness of the Internet than potential abuses by Internet providers.

"We just need to look at the Apple App Store "¦ where everything that runs on your iPhone or iPad has to be approved by Apple, with them taking a huge cut of the revenue at every step, with no real competition in sight. Consumers should be very worried about that," Wales said.

Although the Internet has never been perfectly neutral, that doesn't necessarily mean the FCC's attempts to police Internet providers are futile — or that the equality gap couldn't grow.

Companies like Comcast exercise enormous power over our access to information because they own the "last mile" of cable into our homes. Controlling the on-ramp to the entire Internet makes them a much more powerful gatekeeper than a search engine or a social network.

"The question isn't whether the Internet treats everyone equally — because it doesn't already," said Harold Feld, the senior vice president of consumer-advocacy group Public Knowledge. "The question is whether adding a new level of discrimination in the last mile is the critical difference."

The FCC first enacted net-neutrality rules in 2010, but a federal Appeals Court struck them down earlier this year. Wheeler is now trying to rewrite the rules in a way that can survive court challenges.

His proposal would still bar Internet providers from blocking websites. The providers would, however, be able to charge sites for faster service as long as the agreements are "commercially reasonable."

Wheeler has said he plans to crack down on any arrangements that are anticompetitive, bad for consumers, or infringe on free speech. Providers would not be allowed to favor traffic from an "affiliated entity" — so Comcast couldn't boost content from NBC (which it owns). Internet providers would also not be allowed to degrade their overall level of service to make the "fast lanes" more appealing.

Wheeler's proposal, set for a preliminary commission vote on Thursday, has prompted an outpouring of public anger. Critics argue that any "pay-for-priority" schemes on the Internet are an abuse of market power by broadband providers and are inherently bad for consumers.

But regardless of what happens with the FCC rules, even the worst-case scenarios won't be creating inequality on the Internet — only expanding it.