Today the internet changed forever. Despite appearances, it’s no longer a level playing field, where individuals and organisations large and small have equal access. From now on, if you’ve got the money, you can buy a better deal.

The US Federal Communications Commission (FCC) today approved a new set of rules on network neutrality — the idea that one person’s information is transmitted through the internet with the same speed and priority as everyone else’s, and that telcos don’t get to make decisions about what lawful content may or may not be transmitted.

In theory, network neutrality means it doesn’t matter if you’re a major information provider like Rupert Murdoch or a two-person start-up in a garage somewhere, everyone’s data packets are transmitted in the order they’re received. Any congestion affects everyone equally.

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“The Federal Communications Commission today acted to preserve the Internet as an open network enabling consumer choice, freedom of expression, user control, competition and the freedom to innovate,” crows the  announcement [pdf]. “The internet has thrived because of its freedom and openness — the absence of any gatekeeper blocking lawful uses of the network or picking winners and losers online. Consumers and innovators do not have to seek permission before they use the Internet to launch new technologies, start businesses, connect with friends, or share their views.”

Since vast amounts of the world’s internet traffic is generated from or passes through the US, the ruling affects all internet users to some degree.

Apart from requiring telcos to transmit all customers’ internet traffic with equal priority, the new rules also prevent them from blocking lawful content, applications or services, and prevent them from blocking customers from connecting whatever devices they like to the internet. All this sits within a framework of “reasonable network management”, so it’s still OK to block things like illegal content, or malicious software, or spam, or devices that could physically harm the network.

It’s also OK to give priority to certain kinds of traffic during periods of congestion to ensure  quality of service — for example, giving priority to data packets that are part of a real-time video conference over somebody sending email or downloading software updates.

All wonderful stuff. We should be cheering that this has been codified. Level playing field cycle of investment innovation profit motherhood freedom America doubleplusgood!

Except that the new rules include two gotchas. Great big ones.

One, the Network Neutrality rules only apply to fixed-line broadband providers. “Mobile broadband is an earlier-stage platform than fixed broadband, and it is rapidly evolving,” the FCC says. “In addition, existing mobile networks present operational constraints that fixed broadband networks do not typically encounter.”

So the FCC will take “measured steps”. They’ll leave wireless operators to continue doing their own thing and “monitor” them for transgressions. That’s a very small measured.

Two, telcos aren’t completely banned from creating separate fast lanes. They can declare certain kinds of traffic to be a “specialised service”, for example — something that’s somehow different from access to the open internet — and give it priority. Vague definitions leave plenty of wriggle-room in other areas.

Reaction — and voting on the rules themselves — has been split along party lines. Democrat-appointed FCC members Robert McDowell and Meredith Baker issued their own dissenting statements. I’d share them with you, but as Crikey’s deadline approaches the FCC’s website is offline, presumably overloaded.

Tea Party types see the rules as a government attempt to control the internet — as The Daily Beast reports, “yet another example of creeping socialism taking over every aspect of our lives”. Well, they would. Incoming Republican leaders have even vowed to overturn the rules.

“The FCC has overstepped its bounds and we intend to put a bridle on them and rein them in,” said Greg Walden, a Republican congressman from Oregon who’s the incoming chair of the House Communications Subcommittee. “They have a flawed process at the FCC that shuts out the people’s business and we are going to address that forcefully.”

Yet they have strange allies. Writing at the Huffington Post Timothy Carr, campaign director of Free Press and calls it a betrayal. “The rule is so riddled with loopholes that it’s become clear that this FCC chairman crafted it with the sole purpose of winning the endorsement of AT&T and cable lobbyists, and not defending the interests of the tens of millions of Internet users.”

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Peter Fray
Peter Fray
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