How The FCC’s Proposed Fast Lanes Would Actually Work

[Commentary] The Federal Communications Commission just released its proposed open Internet (net neutrality) rules. Although both Chairman Wheeler and the proposal extensively discuss the problems that occur when ISPs get to choose winners and losers online, the proposed rules still create fast lanes and slow lanes on the Internet.

Everything starts with what the order describes as a “minimum level of access.” This is the slow lane. Once you get outside of this minimum level of access, ISPs have a lot more flexibility to start cutting deals. This is the fast lane. The proposed rules try to define “commercially reasonable” by using a multi-factor test.

These factors include the impact on present and future competition, the impact on consumers, the impact on speech and civic engagement, technical characteristics, “good faith” negotiation, industry practices, and “other factors.” Some kinds of discrimination will qualify as being commercially reasonable. The result of this structure is a two-tier Internet: a minimum level of access that ISPs cannot degrade, and a premium lane with plenty of flexibility for deal making.