The FCC’s “half-pregnant” plan for network neutrality, and why it won’t work

[Commentary] The Federal Communications Commission is considering separating broadband into two distinct services: a retail one, in which consumers would pay broadband providers for Internet access; and a back-end one, in which broadband providers serve as the conduit for websites to distribute content. The FCC would then classify the back-end service as a common carrier, giving the agency the ability to police any deals between content companies and broadband providers.

This approach echoes a scheme floated by the Mozilla Foundation. The Mozilla trick is based on a legal slight-of-hand that redefines just who net neutrality involves in the first place. Rather than treating consumers as the beneficiaries of net neutrality obligations (as the idea has always be understood), the Mozilla definition would instead treat websites (or, “edge providers”) as the customers. This would have the effect of applying the public utility provision to a different set of actors at a deeper layer of the internet, rather than to the “last mile” at which the ISPs come into people’s living rooms. If that sounds complicated and hard to follow, that’s because it is.

It also won’t work. As Stanford professor Barbara Van Schewick explains, ideas like Mozilla’s “were put forward in good faith and with great creativity” but obvious legal deficiencies “would sink sender-side proposals in court.”