We may still disagree in some particulars, but a recent Huffington Post oped by former FCC officials Kevin Werbach and Phil Weisner (supporters of net neutrality regulations) contained a number of important points that we hope more regulation advocates will recognize.

For example, they acknowledge that end-to-end is not simply a natural state, but involves a lot of business negotiations.

If the Internet story is one of a neutral network, it’s also one of private firms negotiating arrangements and managing their networks as they see fit.

Werbach and Weiser then get into the heart of the current debate. This is significant, because, I presume, they are not simply speculating based on public information here.

Under what we understand the FCC proposal to be, access providers can’t block, can’t degrade, can’t arbitrarily favor certain applications, and can’t favor their own traffic. If you read the past decade of network neutrality literature, those are the dangers usually mentioned. So what’s everyone so mad about?

The major change in the new proposal concerns so-called paid prioritization agreements. In other words, the new rules appear to allow a broadband provider to offer content providers the option of faster or more reliable delivery for a supplemental fee. Under the old rules, the FCC didn’t prohibit such deals, but said it was skeptical they would meet its discrimination test.

In the new proposal, the FCC appears to mandate that paid prioritization offerings be “commercially reasonable.” This requirement presumably would insist on the availability on the same terms to all, with the FCC reviewing such offerings on a case-by-case basis. Such a requirement might also include the condition that any paid prioritization offerings are only reasonable when the broadband provider offers a sufficiently robust level of non-prioritized broadband. 

Werbach and Weiser go on to point out that Title II “common carrier” regulations also allow “different levels of service – paid prioritization in other words – as long as the prioritized service level was available to all comers.” The rhetoric of the net neutrality debate – “toll roads”, “fast lanes”, “gatekeepers” – is useful red meat for net neutrality advocates, but ignores the fact that these things have always existed, and in fact created the internet we know.

Saying the FCC action will “force companies to pay tolls” or “create a two-tier Internet” makes it seem as though companies such as Netflix and Google currently use the Internet for free. They don’t. They pay access providers; they pay intermediaries called transit providers; they pay CDNs; and they pay to build or buy their own infrastructure. Some pay more than others. Big players like Microsoft, Amazon, Google, Facebook, and Apple spend billions every year to speed the performance of their services to end users. They would like to pay less, and network operators would like to charge more; that’s the way business negotiations work.