Much of the debate surrounding net neutrality has framed the issue as both ideological (with those favoring more regulation pitted against free-market advocates) and political (with all sorts of strange bedfellows staking out positions on behalf of various constituencies).
Net neutrality is certainly both of these things, but from my perspective as in-house counsel for an Internet start-up, the real story of net neutrality resonates most clearly in the familiar story of David and Goliath. David was the scrappy kid who stood up for his beliefs and had the courage to confront an opposing giant. David’s skill and the strength of his convictions allowed him to defeat the giant and thereby gain victory for his nation.
Every small business wants to evolve one day into a different type of giant-killer – one that succeeds against established competition because it offers solutions to real problems that are better, cheaper, or total paradigm shifters.
Entrepreneurs can accept certain challenges that come with starting and growing a business — like a lack of capital, finding talented workers, and so on. What is much more difficult to accept, however, is an un-level playing field where larger, better-funded, and more established companies have an advantage over the little guy.
To continue the metaphor, the alternative to net neutrality will likely mean a landscape dominated by Goliaths where the odds are stacked heavily against a David seeing success. A pending vote by the Federal Communications Commission (FCC) in February will go a long way towards clarifying what this landscape will look like.
Net neutrality: The deets
“Net neutrality” was a term coined by Columbia University professor Tim Wu in 2003 to describe the notion of the Internet as a resource that should be open to all, free of artificial restraint or regulation.
Challenges to this notion have included allegations of recent commercial efforts to “throttle,” or limit, the flow of Internet traffic, and federal court opinions addressing the ability of the government to regulate the Internet. The journalists, scholars, and judges considering this issue have rightly noted that net neutrality is, in reality, a spectrum of ideas depending on your viewpoint as consumer, content provider, ISP, or regulator.
Life in the “fast lane”
In April of 2014 the FCC proposed rules that would allow for a so-called “fast lane” on the information super-highway where broadband providers could allow faster access to certain fee-paying customers.
Critics immediately seized upon the idea that this would lead inevitably to a two-tiered Internet: the Maserati version for those with deep pockets and the Ford Taurus version for everybody else.
The FCC is set to vote on these rules on February 26, 2015. Here are three potential outcomes from this vote and my opinion of their respective chances.
1. The rules pass as originally proposed
Unlikely. Two of the three Commissioners who voted for the proposed rules in April, 2014 have seemingly softened or backtracked their support. Additionally, critics from industry, politics (including President Obama) and the tech press have excoriated the proposals.
2. The FCC proposes regulating the Internet as a public utility
Likely, in some variant. This is the so-called “common carrier” option which refers to the idea of treating the Internet like other common utilities that we rely on in daily life such as telephone, water and electric services.
This has big implications for the profit potential of ISPs but it also allows for numerous protections for consumers like regulatory control of pricing and access. Critics find the specter of government regulation in this space to be a non-starter.
3. The vote is delayed
Possible. The amount of interest in the outcome of this vote has ramped up considerably in the past few months. It is possible the FCC may want more time for study or public comment before a decision is reached.
Regardless of the outcome of the vote by the FCC, the public is best served when all players can compete on an even playing field.
This ensures an Internet where a small retailer, for example, can vie for customers against a much larger rival based upon the strength of its ideas and products and not based on its ability to pay for faster flow of traffic to its site. Net neutrality is at the core of an open, competitive Internet and should be protected.
Doug Vreeland is a former prosecutor, litigation associate at a large law firm and in-house attorney at a Fortune 50 company. He is now in-house counsel at Internet start-up WP Engine in Austin, TX. The opinions expressed in this article are his alone.
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