Mozilla released a petition on net neutrality to the Federal Communications Commission this week, in an attempt to persuade the FCC of a sort of “third way” approach to the current impasse in Internet regulations. The actual legal petition is quite long and the shorter blog post requires a little explaining to grasp, so we went to Mozilla to ask for the layman’s version.
Here’s the background: Much of the debate around net neutrality boils down to whether Internet service providers (ISPs) should be allowed to slow down or block traffic based on which website a subscriber is accessing, and charge that site for faster speeds.
If ISPs were classified as “common carriers,” they would fall under increased FCC regulation, making this kind of behavior illegal. But they’re not classified that way today. Mozilla’s aim in their petition is to avoid a fight over reclassification by simply disentangling the different services that ISPs provide. In other words, one classification for the service ISPs provide to end users, and another classification for the service they provide to tech companies.
In the meantime, protestors calling for net neutrality have set up an encampment outside FCC headquarters in advance of its May 15 meeting, where new net neutrality guidelines are expected to be proposed. Mozilla’s petition has garnered a lot of media attention, as well as some confusion in the press reports. I spoke by phone with Chris Riley, senior policy engineer at Mozilla, and one of the architects of the petition in order to get some more details and clarify exactly what Mozilla is calling for.
Why did Mozilla release this petition?
Mozilla’s mission as an organization, as a project, is to protect the open Internet for everyone including our half-billion users of the Firefox web browser and Firefox OS phone and for the many makers and developers of the web who use our products and our open source code in their own work. Net neutrality is an issue that we’ve worked on in the past and that we care quite a lot about internally. We worked to help the FCC craft good open Internet rules a few years ago and were very disappointed when the D.C. Circuit sent those rules back. We’ve been watching the FCC as it starts to put together a response plan and we’re very concerned by what we’ve heard.
We’re concerned that what the FCC is planning to do–as far as we can understand now–won’t adequately protect users or business on the Internet. So the motivation behind our petition was to get the FCC to take a different tack forward. We want the FCC to give itself more clear and secure authority in order to adopt meaningful and effective rules to protect net neutrality. We want to get to a place where there are real, enforceable, clear net neutrality rules on the books–meaning no blocking, no discrimination, no paid prioritization. And this should be applicable to wireless as well as wired Internet.
Why does net neutrality matter to the average Internet user?
Net neutrality is very important for Internet users to protect their choice of content online. It’s best to think of this in a negative sense: What would the world look like without net neutrality? And the answer is essentially an Internet that looks more like cable television. You may have a lot of choices. But a lot of them aren’t going to be things you want. Not having net neutrality jeopardizes this fertile, dynamic, evolving ecosystem where every year there’s a new multi-billion-dollar company with a fascinating product used by millions of people. We have this steady stream of innovations on the Internet thanks to the net neutrality. If we lose that dynamic then we as Internet users are going to have fewer awesome things to do online. And when we have our own ideas we might not be able to turn them into businesses because we’ll have to pay additional fees up front and face a less open market for our own entrepreneurship. That’s the net neutrality baseline.
And how does Mozilla’s petition help us get to that point of having net neutrality?
Essentially what we are saying is to get to net neutrality you have to have the federal agency charged with overseeing communications platforms–the FCC–in a place where it can protect the Internet. But we’re not in that place now. We’re not in that place because there has been an evolution of the law in this space that has not been paying attention to the way that technology and the market have evolved. So if you look at this pattern over the last 20 years, the evolution of the technologies and the market of the Internet and the evolution of law around it are heading in different directions. What our petition does is try to merge these two things back together and reorient the law to reflect the current technology and market. And get those things working together going forward and that will arm the FCC, charged by Congress with overseeing communications in this country, to be able to move forward with real net neutrality.
Do you see this petition that you’ve put forward as the end game of achieving robust net neutrality or is this just the first step?
This is the first step for sure. Our petition does not propose actual rules. It is really about getting the authority to create rules. The reason the FCC is looking at weaker rules right now is because the D.C. Circuit said to them “on the current path that you’re on for authority, there are limits to what you can do with net neutrality rules.” So the FCC listened to that, but they listened to it in one particular way and said “Okay, let’s figure out what rules we can do that fit within the limits of what the D.C. Circuit has set for us.” We’re asking the FCC to change the game. We’re saying to change their authority and listen to the D.C. Circuit, but in a different way and thereby get to better rules. Stage two of this process, after the authority process, will be the actual net neutrality rules.
Let’s talk about this idea of how technology has evolved in the last 20 years. In your blog post announcing the petition you talk about how there are new “two distinct relationships” in terms of how Internet traffic gets distributed. Can you explain what you mean by that?
Earlier in the Internet it made sense to think about your local ISP–AT&T, Verizon, Comcast–as really only talking to you and to other network companies. They took your traffic, they gave it to another network company and that company sent it off somewhere. And where it went to at the other end your local AT&T or Comcast operator didn’t know and didn’t care. But that is not the world we live in now. We now live in a world where AT&T and Comcast have the ability to pay attention to every individual website you’re talking to as one of their subscribers and to decide to speed up or slow down your communications with different websites. And that changes the root of the net neutrality problem. If we had an end-to-end Internet as we did 40 years ago, we wouldn’t have a problem. But instead we do have a problem because there is this new capability of looking at and differentiating among the Internet services and content that you as a subscriber are looking at. Because ISPs can differentiate based on the content provider that’s way off in some remote portion of the Internet, it’s best to understand it as a service that they are offering to that remote provider. And then to look at that from the perspective of the laws that we have on the books.
And how does Mozilla’s petition get the law to catch up with how the Internet has evolved?
Basically by looking at this Internet traffic as a “remote delivery service” that’s being offered to the content and application end points on the Internet. That’s something that has never been defined by the FCC. The FCC has the ability to look at the statute that sets out categories and types of services. It defines some services as telecommunications services and others as information services. And the commission has a choice to make: We have a new service here with this remote delivery service. If they choose to articulate that as a significant and standalone category of services then they have to choose whether to put it into the Title II–telecommunications–bucket or the Title I–information services–bucket. Our petition walks through that exercise and explains why the commission should put it into the Title II telecommunications bucket. So we’re taking the statutes and precedents that have evolved over the past twenty years and applying them to this new remote delivery service construct.
There’s been some confusion in the coverage of Mozilla’s petition. Forbes says that you’re calling for “common carrier” reclassification, while Ars Technica says that wouldn’t be necessary under your proposal. Can you clarify and explain where that confusion might be coming from?
Our petition asks the FCC to use Title II, which is the common carrier authority, but we’re not asking for reclassification. Crucially, we’re not asking the FCC to change any of its existing precedents. So there’s a distinction here and it’s one that’s often elided over in the press articles. There’s a common carrier service and then sometimes providers as an entity are described as common carrier providers. But that’s not really the best way of looking at it. It’s better to look at the specific services rather than providers as a whole. So the reclassification concept says to take the Internet access service as we know it today, which is currently an information service, and reclassify that service as a telecommunication service. What we are doing is different. Instead, we’re saying leave that service alone. But look at a mirrored partner of that service, which is the remote delivery service. And put common carrier onto that service, while leaving the original Internet access service alone. So we’re using Title II common carrier authority, but putting it onto a different kind of service and not changing the service that has already been classified. We are only targeting the traffic within the ISPs’ local network that is associated with these companies’ services and content delivery.
A lot of press coverage has talked about “fast lanes” that established companies could pay for, which would crush upstart competition. But is there a scenario where business might actually want to pay for preferential treatment and therefore might not want net neutrality?
I think there are probably some inclinations along those lines from some of these companies. But at the end of the day they know that once they start paying for prioritized treatment, even if it gives them a short-term advantage over the competition, they’re going to have to keep paying that in perpetuity. And no business wants another line on its expense sheet for getting basically the same kind of open Internet they’re getting today without paying access charges. I would be very shocked and think it would be myopic of any business to say, “no, we want to be able to pay for prioritized access.” I don’t expect to hear that as a response. It’s important to note that these technology companies are not in any way, shape, or form subject to anything or any regulations based on our petition. Really, they’re the beneficiaries because a service that’s effectively being offered to them would be regulated. And so actually one of the other benefits of our petition is to wall off technology companies and the services, applications, and content that they offer from FCC authority. So I think the long-term effect of the Mozilla petition will be to separate what network operators and telecommunication service providers do from the Internet industry. The trend the FCC is on now could be a slippery slope toward greater regulation of the technology industry. The Mozilla petition helps forestall that.