Be Careful What You Wish For

12/22/2010 06:39 pm ET | Updated May 25, 2011

Sometimes you might get it.

For most of the past year, public interest groups worried about the future of the Internet have pushed for action on net neutrality by the Federal Communications Commission. In response to that call, Chairman Julius Genachowski moved in the spring to reclassify broadband services, proposing a light regulatory protocol as a "third way".

After that didn't exactly take off, the chair convened meetings with industry including AT&T, Skype, Verizon and Google, meetings that broke down after Google and Verizon announced a deal that would introduce paid content prioritization. In the ensuing uproar, the issue once again rose to the level of a burning public debate with right-wing accusations of "Obamacare for the Internet" competing with public interest laments about slow lanes on the Internet to come for alternative news, independent artists and musicians, and community groups.

A stalemate was waiting to be broken. The chairman jumped into the breach once again (apparently hoping the 3rd time would be the charm) and announced the release of an order to be voted on December 21st. The order passed Tuesday on a 3-2 vote, but is not promising with some restraints on network management practices for wired systems, but a far less strict protocol for mobile and wireless networks and little control of paid prioritization marketing schemes.

The Federal Communications Commission is a five-person commission, with two Republican commissioners opposed to any action whatsoever and two Democratic commissioners expected to push for stronger regulations, which left the Chairman (a Democrat supported by a Democratic president) the tiebreaking vote.

So what are we to make of this order?

Genachowski's order attempts to impose some teeth to enforce the equal treatment of data on wired connections. The arbitrary jamming of Bit Torrent uploads chronicled by Robb Topolsky that led to sanctions on Comcast in 2008 would not be permitted. At least in the eyes of the FCC. But their legal authority to enforce sanctions without reclassifying is shaky at best, and may not hold up to a court challenge.

So your laptop is theoretically on neutral territory when you have it plugged into a wall. Take it on the road, however, and you're in a different ballpark. The order skimps on extending neutrality protections to mobile Internet usage so traveling laptops, smart phones and tablet devices like the ipad are largely exempted from rules assuring the equal treatment of all data and all applications of your choice.

Some of you may be thinking that in 10 years, it is likely the majority of Internet traffic will be on one mobile platform or another. You wouldn't be wrong.

We may be regulating the Internet equivalent of the Pony Express.

The other big elephant in the living room is the threat of paid content prioritization. Is that an imaginary threat?

Not if you listened to the CEO of the UK's Virgin Internet, who had this to say way back in 2008:

In an interview with the Royal Television Society's Television magazine, far from covering up their intentions, Virgin Media's new incoming CEO Neil Berkett - who joined the Virgin Media Board just a few days ago - has launched an attack on the ideas and principles behind net neutrality. "This net neutrality thing is a load of bollocks," he said, adding that Virgin is already in the process of doing deals to speed up the traffic of certain media providers and that he has promised to put any website or service that won't pay Virgin a premium to reach its customers into the "Internet bus lane."

While you probably wouldn't get any American telecom CEO to be quite so blunt, it stands to reason the profit model is not wildly different in the United Kingdom than here at home.

We don't have to rely on telegraphs from abroad; Comcast, always the first to leap off any bridge, recently started charging a recurring fee for the transmission of Netflix streaming videos by third party provider Level Three Communications. Thomas Stortz, the legal officer for Level Three had this to say:

With this action, Comcast is preventing competing content from ever being delivered to Comcast's subscribers at all, unless Comcast's unilaterally determined toll is paid - even though Comcast's subscribers requested the content. With this action, Comcast demonstrates the risk of a 'closed' Internet, where a retail broadband Internet access provider decides whether and how their subscribers interact with content.

Level Three will pay the fees and then presumably increase what they charge Netflix and then Netflix will increase what it charges consumers and life will go on with a $5 month surcharge, but if you think about the competitive implications after Comcast merges with NBC, then the true horror of paid prioritization comes into focus. It will be cheaper, easier, faster to access NBC content on Comcast internet connections because ..... no fees.

After every major content provider scuttles to sign a preferred content deal with one or another major Internet service provider, God help the consumer trying to locate some not-so-preferred content.

The Internet slow lane might become a pretty lonely place.