Comments to the FCC on Protecting and Promoting the Open Internet

Dear FCC and Chairman Wheeler,

It is crucial for the FCC to adopt effective and enforceable Open Internet regulations. In their absence, last-mile providers will almost certainly devise ways to bias availability of Internet connectivity to favor their own interests at the expense of those of their customers. As a practical matter, few of us have the luxury of “voting with our feet” if our last-mile provider does not meet our needs and expectations. While it would be nice if this were not so, it is unlikely to change in the foreseeable future. We are dependent on regulatory agencies such as the FCC to give us the voice which we cannot achieve in the marketplace.

“Pay-to-play” arrangements are a concern because a similar imbalance applies: customers of an edge provider can walk if they are dissatisfied, while customers of an ISP typically cannot. Negotiation under these conditions is problematic, and requires regulatory oversight to assure that ISPs do not misuse what is effectively a monopsony power. Individualized arrangements with edge providers should be permissible only when unique conditions (such as disproportionate traffic from a single source) create a need for changes in network infrastructure or operations to accommodate those conditions; and the arrangement should be limited to restoring parity with the majority of services which do not require special accommodation.

Please note that speed is not the only potential concern. For example, it should not be permissible for last-mile providers to employ data usage quotas as a way to privilege certain services that arrange to be exempt from the quotas, or as an anti-competitive tool to make “cord-cutting” less feasible. Such providers should be required to demonstrate an actual need for restrictions they impose on their customers—once again, because most of their customers have no substantially equivalent alternative, and hence there is no effective market force to balance the self-interest of last-mile providers.

While there is some argument that mobile providers are subject to more competition, they should be watched carefully. At present it is not apparent that competitive pressure is sufficient to deter anti-consumer, anti-Open-Internet behavior by mobile providers, either.

The Internet is the printing press of our times. We are only beginning to discover how broadly and deeply it will enable the free exchange of ideas, knowledge and culture. Like any technology in the real world, though, it is subject to limitations in engineering and economics. It is unfortunate, but presently unavoidable, that these limitations concentrate a great deal of potential power over the evolution of the Internet in a few hands, and create incentives to use that power in problematic ways.

I want to thank the FCC and Chairman Wheeler for your efforts to preserve the integrity of the Open Internet. There is plenty of room for profit; but the place of the Internet as a tool of democracy and freedom will always be its most significant and enduring legacy.

Sincerely,

Randall Joseph Fellmy, 13 July 2014