Last month the FCC released its proposal for America’s new network neutrality rules. Unfortunately, the agency’s proposal included rules that would permit Internet providers to prioritize certain websites, e.g., make deals with some services for a faster and better path to subscribers. While the FCC claims it is not endorsing such deals, the proposed rules will inevitably be read as exactly that.

The parties most threatened by this kind of network discrimination are those who are trying to make novel and unanticipated uses of the network and who cannot afford payola. 

But innovators need more than a level playing field – they need specific details about how Internet providers manage their networks so that they can figure out how best to maintain current offerings and develop new products. To see why, let’s fill in some blanks.

In harm’s way

For the most part we’ve heard people talk about net neutrality in terms of how Internet providers might speed up consumer access to websites in exchange for access fees, and rightfully so.

Yet other forms of pay-for-play and general accessibility discrimination are equally important. This includes the opaque world of peering and interconnection agreements, traffic shaping, zero-rate offerings, and flat out blocking, all of which also limit the ability of users to access parts of the Internet. (And we haven’t even mentioned data caps and mobile usage, topics that we’ll save for future blog posts.)

Of course, Internet providers have long offered different qualities of service to consumers for varied pricing. For example, a small business that makes extensive use of video conferencing has the option of paying more for a more robust connection, and that’s fine. Problems arise, however, when instead of allowing consumers to choose what quality of service they want to receive, ISPs decide to make choices for their users, playing favorites and providing faster or slower connections to certain websites. At that point, user choice becomes a smaller and smaller driver for innovation.

Learning from the past

From the most obvious practices, like content-based discrimination, to the less apparent forms, like packet forgery or paid prioritization and discriminatory interconnection agreements, we’ve seen all kinds of non-neutral ISP behavior in recent years.

Let’s start with the worst: content-based discrimination, which is completely unacceptable. In 2005, Telus, a Canadian ISP, blocked access to a website that was used to plan actions by the Telecommunications Workers Union during a strike. In 2007, AT&T deleted Eddy Vedder’s criticism of George W. Bush during a webcasted Pearl Jam concert.  Although AT&T was technically acting in the capacity of a content provider, content providers and Internet providers have merged dramatically in the past few years, resulting in the lines becoming uncomfortably blurred. This sort of censorship threatens both innovation and free speech.

We’ve also seen practices of traffic shaping, most notably when Comcast was targeting and blocking protocol-specific traffic from peer-to-peer filing sharing applications such as BitTorrent in 2007. And in Canada, the broadband provider Rogers Hi-Speed Internet blocked and throttled all encrypted file transfers over their network for five years.

Peering into the future

Connections between web service providers, websites, and ISPs depend on agreements to exchange Internet traffic with each other, also known as “peering” links. Operators of backbone and web services make peering agreements with ISPs about how to exchange Internet traffic so that data can be carried efficiently from one part of the Internet to another. But because Internet providers may use discriminatory interconnection agreements to pressure websites to pay fees in order to connect to their networks, these agreements must be examined carefully in order to preserve an open Internet.

Unfortunately, discriminatory interconnection agreements have already occurred, resulting in real and chilling consequences. For example, in 2010 Comcast refused to maintain its architecture to handle the uptick in traffic coming from the web service company Level 3, who had signed a contract with Netflix to be their transit provider.

We’ve even seen discriminatory interconnection practices lead to whole portions of the Internet being cut off from certain ISP customers.  In 2008, for example, Sprint customers lost all traffic from the web service company Cogent, one of the nation’s largest backbone web service providers. More recently, Verizon decided that Cogent would have to make a deal in order for the ISP to update its network architecture to handle Cogent’s traffic. Verizon was reportedly letting the ports where traffic is exchanged with Cogent get crammed instead of adding more ports (what the company typically would do) to handle the increase in traffic being demanded by users wanting streaming video services. While we don’t know the precise details of these deals, they can easily collapse into extortion.

At the moment, peering and interconnection agreements occur under a veil of secrecy, yet they are the sources of the most abhorrent discrimination we’ve seen to date. We don’t know how much money is exchanged, the terms of the agreements, or even all of the companies that are engaging in this kind of deal making.

We want to expect the unexpected

If the FCC embraces rules that allow wealthy incumbent companies to reach users at faster speeds, the services we see in the future could be the same companies that are popular today.  But what about the service we don’t know about yet?  Will they be able to gain a foothold?  Many startups and investors suggest the answer is no.

In other words, when ISPs have the ability to pick Internet “winners,” we all lose. And the scary part is that the harms might not be easy to locate, because we won’t even know what we’re missing.

The Internet is one of the greatest things humanity has ever created, and who knows what we’ll be able to do with it next.  Let’s make sure there will always be plenty of room for the unexpected, by making certain no new business or service has to make a special deal to be able to meaningfully connect to users.

You can help promote an Internet built on user-driven innovation. Visit DearFCC.org right now and comment directly on the FCC’s proposed rules. The FCC specifically seeks comment on forms of discrimination that the public has experienced first hand. So tell your story. And tell the FCC: it’s our Internet, and we’re going to fight to protect it.