The Internet has functioned well for decades with minimal regulation of either access or edge providers. The Federal Communications Commission’s open-Internet order replaces that stable equilibrium with an asymmetric regime that is inherently unstable and antithetical to investment and innovation.
The FCC’s order classifies access providers as common carriers and imposes on them “bright line” rules against blocking, throttling and paid prioritization. At the same time, it specifically excludes edge providers from both that utility classification and those rules. Access providers must be “just and reasonable.” Edge providers have no such obligation.
In effect, the order places sole responsibility for ensuring the smooth flow of Internet traffic on the access providers, while depriving them and the FCC itself of the ability to influence the behavior of the edge providers. That is a highly unrealistic and dangerous approach to the way the Internet works today.
In the traditional telephone network, the phone company made it possible for its subscribers to communicate by connecting them directly to one another. In today’s Internet, broadband Internet access providers take part in a multistage communication process with edge providers that combines transmission and information services at each stage. Access providers and edge platforms all use combinations of transmission, caching and computing functions to ensure that an individual’s communication reaches its desired targets over the Internet.
For example, individuals wishing to communicate with friends, family, gamers or followers over the Internet will use their access providers to reach Skype or Facetime or Facebook or Tumblr or Twitch or Twitter or any of a number of other communications platforms. A videographer who wishes her video to be seen by a global audience will send it via her access provider to a platform like YouTube or Netflix, so that they can relay that video to those spectators. They, in turn, may rely on other edge platforms, such as content delivery networks, peering and transit providers, and backbone networks.
For the individual who wishes to communicate, both the access and edge platforms are equally vital. To have one’s message blocked, degraded or delayed at any point in the path is equally devastating. Nevertheless, the FCC’s order allows all of the edge platforms to block, throttle and prioritize at will, while demanding that the access providers that must partner with them ensure that all legal traffic reach its destination undeterred.
Not only does the FCC ignore the key role edge platforms play in facilitating an individual’s communications, the FCC ignores the power edge providers can exercise. The FCC’s stated rationale for creating this asymmetry by imposing its “bright line” rules and common-carrier regulations on the access providers is its assumption that they can act as gatekeepers that may have the ability and incentive to act in ways that will advantage themselves. If true, this reasoning applies equally to predicting the conduct at the edge. The Internet ecosystem is full of powerful edge providers that can act as gatekeepers and may have both the motivation and ability to advantage themselves.
Conversely, the FCC ignores the deleterious effect regulation has on access providers. The FCC exempted the edge providers from its rules because it believes their claim that they will not be able to innovate and invest if they are regulated. That is, of course, a valid argument but is all the more true of the highly capital-intensive access providers. Regulation at either level is detrimental to investment and innovation.
The FCC’s asymmetric order destabilizes the balance that has allowed the Internet to thrive and to be open. It hurts consumers by emboldening edge providers to increase their already enormous power to stifle communications even as it discourages access providers from innovating and investing. A better option would be legislation that creates a new framework that ensures an open Internet without threatening investment and innovation throughout the Internet ecosystem. Only Congress can assure a truly open and vibrant Internet for all Americans.
Anna-Maria Kovacs is a visiting senior policy scholar at Georgetown University’s Center for Business and Public Policy. She has covered the communications industry for more than three decades as a financial analyst and consultant.