Today, FCC Chair Tom Wheeler is walking around to the offices of his fellow commissioners and passing out freshly mimeographed copies of his proposal for new net neutrality rules. He’s also typed up, presumably on a trusty Imperial A, a defense of his baffling decision to disregard the whole “neutrality” aspect of net neutrality by allowing deep-pocket content companies to pay for “fast lane” access.

“There has been a great deal of misinformation that has recently surfaced regarding the draft Open Internet Notice of Proposed Rulemaking,” writes Wheeler, who has previously held consumer-loathing gigs as the CEO of the Cellular Telecommunications & Internet Association and president of the National Cable Television Association. “The Notice does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users established by the 2010 Rule.”

Sigh.

It’s true that the proposal does introduce transparency to the process and it does prohibit the outright blocking of content, but it’s the “no unreasonable discrimination” part that Wheeler is hoping to slip past the public.

He is trying to convince consumers of this illusory notion that ISPs will continue innovating and improving delivery speeds for everybody, but that there will be rare circumstances in which a content provider will pay for extra-special treatment.

But what incentive would ISPs have to make quality connections available to market-wide when there is money to be made in holding end-users as hostages to demand higher fees?

Imagine this scenario:

Cable Company X has a monopoly on wired broadband in Town City, USA. StreamVideoNowPixster Inc (SVNPI) is a streaming video company that wants to reach the residents of Town City.

Under the old neutrality rules, Cable Company X could not degrade or promote content from SVNPI.

Company X’s improvements to its network apply to all content, regardless of the source.

Introduce the fast lane option to the equation. Cable Company X is now allowed to charge content companies for faster, improved delivery to the residents of Town City.

Company X could conceivably continue to improve its network and make most of this upgraded network available to everyone, but then only a very small number of content companies would need to pay for access to the fast lane. A company like SVNPI might decide it is perfectly fine with the existing network, so long as it continues to be upgraded and maintained. So SVNPI doesn’t pay for fast lane access.

Wanting more money from content companies, Company X allows its standard network to stay exactly as it is, while making substantial improvements to the network and offering those only to fast lane customers. SVNPI realizes this and sees that it will have no choice but to ante up and pay for fast lane connection. If it doesn’t, it won’t be able to compete with its deep-pocketed competition at FlixNet.

And even if SVNPI tries to tell the residents of Town City about Company X’s questionable behavior, it’s not like these residents have another choice for broadband service (unless they live in New Jersey, where regulators think super-expensive wireless broadband counts as a viable option).

We’ve already seen this sort of passive-aggressive hostage-taking happen with Netflix customers in the last year. Rather than open up more connections to ease bottlenecking of Netflix downstream traffic, Comcast, Verizon and AT&T each decided to maintain the status quo on their peering connections to Netflix’s bandwidth providers, resulting in those customers seeing cripplingly slow and broken streams.

Why would you expect the ISPs to behave any differently if they are suddenly allowed to charge for priority access?

Wheeler says his proposal, which is still subject to a commission vote and the requisite public feedback period, will set a “high bar” for what is considered “commercially reasonable,” implying that fast lane deals will be subject to all manner of scrutiny to make sure they aren’t extortionate or anticompetitive, but he provides no concrete parameters for this supposedly high bar. Meanwhile, multiple news reports claim that the proposal sets no actual standards for evaluating fast lane deals and that these judgement calls will be made on a case-by-case basis.

“Approaching discrimination on a case-by-case basis creates less certainty than clear rules and disadvantages small businesses and entrepreneurs,” says Michael Weinberg of Public Knowledge.

“[I]nserting any sort of commercial relationship into delivering last mile web content — outside of what the end-consumer pays the ISP — is not network neutrality,” writes GigaOm’s Stacey Higginbotham. “So let’s stop calling it that.”

Our colleague Delara Derakhshani, policy counsel for Consumers Union, says the Wheeler proposal “doesn’t bode well for consumers” and that the “FCC appears to have abandoned the principle that all web sites and services should be treated equally on the Internet.”

“This move is likely to favor the companies with the deepest pockets and hurt the scrappy start-ups,” explains Derakhshani. “It could create a tiered Internet where consumers either pay more for content and speed, or get left behind with fewer choices.”

While Wheeler repeatedly points to the court ruling that gutted the original neutrality rules as providing a roadmap for his proposal, the court did nothing to suggest that fast lanes were the best viable resolution for consumers.

The reason the court struck down the old guidelines is because a stone-age FCC had originally classified ISPs as content companies rather than infrastructure companies. That lack of foresight meant that the FCC didn’t have the authority to impose the neutrality regulations as they were written.

Most advocates for net neutrality agree that the simplest and most direct solution to the neutrality issue would be to reclassify broadband as infrastructure, allowing it to reinstate the previous guidelines.

“It’s more than disappointing that the FCC is not embracing the best option for achieving net neutrality, which is reclassifying Internet service as a telecommunications service,” says Derakhshani.

Explains Weinberg: “The D.C. Circuit Court opinion made it clear that the only way to achieve net neutrality is to reclassify internet access as a telecommunications service.”

The full commission is scheduled to vote on Wheeler’s proposal on May 15, after which point it will accept feedback from the public. When that period begins, you can be sure we’ll tell you exactly how and where to file your opinion on the matter.

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