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The FCC's net neutrality debate is irrelevant — the internet already has fast lanes

FCC Chairman Tom Wheeler
FCC Chairman Tom Wheeler

The debate surrounding today's net neutrality vote at the Federal Communications Commission has been all about "fast lanes." FCC Chairman Tom Wheeler says his proposal would prohibit them. Critics on his left say that stronger rules are needed to prevent them. The FCC's Republican commissioners say that the specter of fast lanes is largely imaginary, and that net neutrality rules are a solution in search of a problem.

They're all wrong. Fast lanes are real. They exist now. And none of the rules the FCC proposed this week are going to prevent them.

You might remember the incident earlier this year when Netflix paid Comcast for a direct connection to its network. Netflix signed this deal after a months-long standoff in which the quality of Netflix videos on the Comcast network steadily declined. Netflix has blasted these payments as unfair "tolls" that undermine the open internet.

This sounds exactly like the kind of tiered internet net neutrality supporters are worried about. So did Comcast violate network neutrality? A reporter asked FCC chairman Tom Wheeler about the incident at a Thursday press conference.

"That's an entirely different issue," Wheeler said. The rules the FCC considered on Thursday "apply to the service the consumer buys to get from their computer to where that pipe interconnects with the greater network." Anything that happened beyond that "peering point," he said, was an "interconnection issue," which isn't covered by the proposed net neutrality rules.

Wheeler said that peering is "an issue that we are investigating, it's an issue we are very interested in, but it's not the issue here today."

The stronger net neutrality rules the FCC passed in 2010 (and which courts struck down earlier this year) wouldn't have helped either. In fact, Comcast has already agreed to respect network neutrality until 2018 to help it win approval for its merger with Time Warner Cable.

But as I pointed out a couple of weeks ago, the practical effects of these two types of "fast lane" are identical. Companies that pay extra get faster service. Everyone else gets slower service.

Indeed, conservatives are right that the kind of paid prioritization that are the focus of this week's FCC rulemaking is largely hypothetical. ISPs might change their networks to prioritize some content over others, but right now they aren't doing so, and some of them have promised not to do so for the foreseeable future.

So why is the FCC focusing on hypothetical fast lanes while ignoring the ones that already exist? One factor is inertia. Comcast's current business strategy, in which it charges almost everyone to deliver traffic to its own customers, only dates to about 2010. This kind of dispute wasn't even on the radar of policymakers when the term network neutrality was coined a decade ago. So a lot of network neutrality advocates are still fighting the last war, not noticing that the open internet is coming under attack on a new front.

The other reason is that regulating the terms of interconnection on the internet is even more complex than regulating classic network neutrality. It's relatively straightforward to say that a network provider can't prioritize one type of traffic over another on its network. But writing rules to govern when two networks must connect with each other and how much they can charge is really difficult. So FCC policymakers may have decided to tackle the easier problem first.

But the reality is that banning one kind of fast lane without banning the other isn't going to accomplish very much. If net neutrality supporters want to preserve a level playing field online, they're going to have to go back to the drawing board.