The Perfect and the Good on Network Neutrality

[Commentary] Network neutrality is in jeopardy -- just not in the way you might have heard.

In implementing network neutrality, some differentiation of traffic must be allowed on the Internet, even encouraged.

The real question is whether Federal Communications Commission Chairman Tom Wheeler's proposed rule is so much worse than what came before. 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.

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." Calling paid prioritization "discrimination" is a matter of semantics.

Indeed, the traditional "Title II common carrier" model (which some network neutrality advocates favor) has allowed different levels of service -- paid prioritization in other words -- as long as the prioritized service level was available to all comers. As for the FCC's apparent proposal, it does not encourage or require paid prioritization. At most, the proposal would allow some commercial offerings -- subject to negotiation between the two firms -- to allow for a higher level of service.

How to defend and implement network neutrality is not as simple as banning all forms of paid prioritization. What really matters is ensuring that the broadband environment continues to provide space for tomorrow's innovators to develop new, disruptive offerings. When the FCC releases the proposed rules for comment, we should all focus on that criterion to evaluate whether they are sufficient and effective.

[Werbach is Wharton Professor and founder of Supernova Group; Weiser is Dean and Thomson Professor at the University of Colorado Law School]