In the wake of the Federal Court ruling in January that struck down key portions of the FCC's Net Neutrality regulations, it looks like the agency is now considering allowing ISPs to have a "fast lane" for preferred traffic, which means traffic that content providers are willing to pay the ISP extra for carrying. Needless to say, the content providers, such as Netflix, are not in favor of this. And also needless to say, ISPs like Comcast are hastening to assure us that these aren't the droids we're looking for. (Notice that the Netflix article is full of technical details, while the Comcast post is just corporate doublespeak--not to mention that the boilerplate disclaimers are more than twice the length of the actual post.)

I'm not going to rehash all the arguments and counter-arguments here. Instead, I want to tell a little fable to illustrate why we, the ordinary users of the Internet, should be very concerned about any such "fast lane" regulation being put in place.

You are at the intersection where you normally turn left to get to your favorite store. However, something seems to have happened to the road there. Instead of the usual smooth paved surface, it's all pockmarked with potholes and the surface in between the potholes is rough and gravelly. You're not even sure your car will tolerate being driven over that surface; certainly you'll have to take it a lot slower than you normally do. The store itself looks no different, nor does its parking lot (which is the private property of the store owners), and there's no obvious reason for the change in the road leading there.

The road to the right, which leads to the SuperMegaStore that you never shop at, looks even nicer than it normally does. New lines have been painted, new street lights have been installed, and there's even a big sign at the turn now telling you about all the great bargains available at the SuperMegaStore if you just Turn Right Now. The SuperMegaStore itself, along with its huge parking lot, is the same as it's always been; once again, there's no obvious reason for the change in the road. But it seems like a lot more traffic is turning right now rather than left, which isn't surprising considering the conditions of the respective roads.

A man happens to be standing to one side of the intersection, observing the traffic and making notes on a clipboard. You pull over to the shoulder of the road and walk up to him.

"Hi," you say. "I don't want to interrupt, but I'm a bit curious about what's going on."

The man makes a last note, then looks up.

"You mean what's going on with the roads, no doubt?"

"Yes," you say.

"Well, it's not really that surprising. The Fast Lane Regulation went into effect at midnight last night."

"The Fast Lane Regulation?" you ask. "I remember hearing about it on the news, but I never really understood what it was all about."

"Well, it's really very simple," the man says. "As of midnight last night, the owners of roads can charge extra fees to the businesses the roads lead to, in order to maintain the roads' throughput. Otherwise, the owners wouldn't be able to recover the costs of building enough road capacity to serve the needs of the businesses. SuperMegaStore paid its fee, plus the extra surcharge for a road upgrade, and an advertising fee to have a larger sign put in, so that's what it got."

"And the other store?" you ask, though you can already see what the answer is going to be.

"They couldn't afford the fee," the man says, "so their road got downgraded."

"But it was a perfectly good road before," you say. "I suppose I can see it not getting new lines painted or fancy street lights, but why make it worse than it was before?"

"Well, obviously, if a store, or any other business, can get the same road quality without paying the fee, businesses won't want to pay the fee," the man says.

"But I'm not sure I understand," you say. "The owners of these roads already get paid for building them, by the taxpayers, and even by tolls. I had to pay a toll on the main highway coming in here. And now they're charging the businesses the roads lead to as well? Isn't that getting paid twice for the same thing?"

"I can't comment on that," the man says. "I'm sure the Road Commission took such things into consideration before it made the regulation."

"But now I can't get to my store," you say. "Even if my car made it over that road this one time, it certainly won't be able to do it regularly. How am I going to get my shopping done?"

"I can't comment on that either," the man says.

As you drive around, you see the effects of the Fast Lane Regulation everywhere. Your favorite restaurant is now reachable only by a gravel track, while the chain restaurants whose food you can't stand have wide access roads and large billboards pointing them out. The MegaTheater has what almost seems to be a superhighway leading to it, while the smaller art theater that shows the old movies you like is now on the other side of a dilapidated one-lane bridge. It seems like you can't get anywhere you would like to go.

Then you begin to wonder: what about new businesses? It seems like they would have to be able to pay the fees just to come into existence; otherwise starting them would be pointless, since it would be so difficult to reach them. It used to be fairly common in your town to see a new business starting up; but that was when everyone could count on customers having access to any place they chose to go on equal terms. What will it be like now?

You keep thinking that this just doesn't make sense. Roads are supposed to be common infrastructure for everybody; they're not supposed to privilege some businesses over others. How could something like this Fast Lane Regulation even happen? Businesses already compete based on the quality and price of what they provide; competing on the basis of extra fees to allow customers to reach them doesn't seem fair. There must be some way to fix it.

So what is the moral of this little tale? Well, each Federal Court that has ruled on this subject has given the FCC a very broad hint: if it wants to regulate ISPs as common carriers, it can regulate them however it wants. This is exactly what was done with the telephone companies in the 1930's, and it is why the sort of scenario described in the above fable never materialized for telephones. I've been racking my brain trying to come up with a reason, other than the obvious one--corporate influence--why the FCC would not be taking this obvious course, but I've been unable to do it. But regardless of the reason, the course the FCC is considering now would be very, very bad for the Internet and for us, its users.

Postscript

By the way, if you're wondering whether the above fable was really being fair by downgrading the roads that didn't pay the fee, consider this graph showing the performance of Netflix by ISP.

Also, just to add some more fuel to the fire, consider this article talking about the wider implications of the Comcast-Netflix deal. Basically, Comcast, Verizon, and the other major internet providers are no longer just ISPs; they also now own a considerable portion of the Internet's backbone, which is where competition between providers used to do the most good. In other words, the major ISPs are working hard to create a situation where they control every pathway from the rest of the Internet to you. As the article notes, this will make it harder for any regulation by the FCC to be implemented fairly, though I don't agree with the article's title that it makes such regulation obsolete. We still need common carrier regulation in this environment; we just need to also push back against the way the Internet's structure is evolving away from a decentralized peer-to-peer network and towards a system of monolithic walled gardens. But one battle at a time.

Post-Postscript

This just in, a Netflix-Verizon deal similar to the Netflix-Comcast deal has been made. If you're wondering why Comcast and Verizon just happened to be the first two major ISPs to strike this deal with Netflix, it may help to know that, prior to these deals, the same transit provider, Cogent, was serving Netflix content to both of them, and that, prior to these deals, the ISPs were making quite a bit of noise about the fact that, because of the volume of Netflix traffic, Cogent was sending them a lot more data than they were sending Cogent, which apparently was not kosher (at least not to the ISPs) under the existing peering agreements between the ISPs and the transit providers, which assumed that the traffic between them would be roughly balanced, and allowed the peering to be free (i.e., no money changing hands either way) on that basis.

Of course, an obvious course for Verizon or Comcast to take if peering was becoming unbalanced with Cogent would be to stop giving Cogent peering for free, and start charging them for the excess traffic generated by Netflix. So one way of looking at the situation is that, as this article suggests, it may actually be cheaper for Netflix to pay Comcast and Verizon directly and cut out the middleman, if the alternative is for the middleman to no longer get peering with the ISPs for free. As the article notes, even if the issues with Cogent were resolved now, Netflix might want to change the transit provider it uses at some point, which it apparently has done fairly often in the past, and the new provider would then have the same issues.

What's missing from all of this, though, is any acknowledgment of the people who are actually the ultimate source of all this traffic: the customers of Comcast and Verizon (and other ISPs) who want to watch streaming movies over broadband. The ISPs are talking as though it's all Netflix' fault for generating so much traffic, without even mentioning that it's their own customers who are actually creating the traffic. Sure, they happen to be doing so by watching Netflix right now, but it could just as well be Hulu next week, or some new service next year that doesn't even exist now. If all of these services just happen to have problems connecting with a few particular ISPs, is that the service's fault, or the ISP's fault? Isn't there a saying that "the one common factor in all of your failed relationships is you"?