Life in the Fast Line - Fordham Intellectual Property, Media & Entertainment Law Journal
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Life in the Fast Line

Life in the Fast Line

How ISPs may Charge Companies to Pay for Internet “Fast Lanes” 

Tech Companies and Consumers Concerned About Net-Neutrality Implications

What if the Internet Service Provider you subscribe to could determine whether you could access your most valued websites such as Google, Netflix or your favorite resident IP-blog?  If ISPs are allowed to continue business as usual, allowing content-providers the option to pay for Internet “fast lanes,” net-neutrality experts warn that possibility is not so far-fetched.

In a recent decision a federal appeals court ruled that the Federal Communications Commission cannot interfere with ISPs that might want to create Internet “fast lanes,” which would allow content providers, such as Netflix or Google, to pay additional sums of money to ensure better Internet service and connectivity for their customers.

According to the FCC, one of the most important features of the Internet is that it treats all traffic that flows across the network in roughly the same way.  The paramount concern of having an “open internet” (aka net neutrality) is providing a level playing field to all users of the Internet where consumers can make their own choices about what content they want to access and the applications and services they use. Proponents of strong net neutrality—or “Internet openness”— are concerned that broadband providers could interfere with their customers ability to access certain content providers altogether, or may degrade the quality of the end-user subscribers’ access to certain providers.  Consequently, ISPs may promote their own competing content or services or enable them to collect fees from other, large providers that can afford to pay a higher amount to access the “fast lanes.”  In its decision, the court explained that a “broadband provider like Comcast might limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.” Federal Communications Commission v. Independent Telephone & Telecommunications Alliance, (4th Cir. 2013).

Without strong net neutrality laws, big ISPs can demand higher fees for the interconnection required to deliver high quality service, which leads to better service for the highest bidders, and consequently, can box out companies or content producers that cannot afford to pay for “fast lanes.”  This concern is not easily squared with the FCC’s Open Internet, or net-neutrality rules of transparency, no blocking, and no unreasonable discrimination.  Accordingly, The Hill’s Technology Blog reported yesterday that tech companies, related organizations, and information and internet allied groups, are pushing for equal treatment of Internet traffic in the aftermath of the decision, and are pushing federal regulators for stronger net-neutrality rules.

In a New York Times article, Tim Wu, a professor at Columbia Law School warned that ISPs plans of opting to charge content providers to use Internet “fast lanes,” may backfire, leading to stricter FCC regulation or to companies like Google or other large companies call their bluff, refuse to pay, and in turn require the ISP to pay the company for ISP subscribers to be able to access to their site.

Moreover, in a blog post last month, following a deal between Nextflix and Comcast connecting directly, rather than through a third party, to improve video streaming for Netflix subscriber, Reed Hastings, CEO of Netflix, explained that some big ISPs are extracting a toll because they can and that even though they control access to Internet for millions of consumers they “are willing to sacrifice the interests of their own customers to press Netflix and others to pay.”   While Comcast portrayed the agreement as good for both companies, Netflix, in that blog post, and later in an FCC filing, called the agreement an “arbitrary tax” and advocated for strong net neutrality.  Reed further explained that although Netflix and other companies that can afford to pay ISPs “will reluctantly do so in the short-term in order to ensure a high quality member experience,” they will fight ISPs to back strong net-neutrality for the “Internet the world needs and deserves,” – one with open access to every user.

The issues of Internet Openness and the FCC’s ability to regulate these types of “interconnection” or “peering” arrangements are just heating up and the FCC says it will continue to monitor the issues involved and see what action is needed.

Alex Buller

Alex Buller is a second year student at Fordham Law School. She is an IPLJ staff member.