In an effort to douse the hair-on-fire reaction to leaked reports about its proposed new net neutrality rules the FCC this afternoon released more details of its upcoming Notice of Proposed Rulemaking (NPRM). Whether it will actually quench the flames is hard to know. The agency confirmed the news that the new rules will permit ISPs to sell preferential treatment of bits to application and service providers on “commercially reasonable terms,” but declined to discuss what those might be.
I have another question though. Notwithstanding chairman Tom Wheeler’s insistence that the agency is not retreating from the core goals of net neutrality, paid prioritization is a clear break from the commission’s original Open Internet Order, which prohibited “unreasonable” discrimination among bits based on where or from whom it was coming.
A federal court of appeals tossed out the old rules back in January, prompting the current effort at a reboot. But the largest U.S. ISP, Comcast, remained subject to the old rules anyway as a condition of its merger with NBC Universal. In its bid to win FCC approval of it acquisition of Time Warner Cable, Comcast has agreed to extend those terms to TWC systems as well, and has at least discussed the possibility of agreeing to extend them beyond their current expiration date in 2018.
Those terms, of course, prohibit Comcast from unreasonably discriminating. In announcing its recent peering agreement with Netflix, for instance, Comcast was careful to note that Netflix “receives no preferential treatment” on Comcast’s last-mile pipes.
Under the new rules, however, were they to be adopted, other ISPs would be free to sell Netflix preferential treatment, leaving Comcast potentially at a disadvantage to its peers, at least from a margin perspective.
So my question is: Which flavor of net neutrality would make it into the final consent decree on the Comcast-TWC merger, assuming one is reached? The old, “no unreasonable discrimination” flavor, or the permissible “commercially reasonable” variety?