4 Things We Still Don’t Know About Net Neutrality

The FCC voted yesterday to reclassify broadband and protect the open internet. In other words, at long last, we have a net neutrality rule. And that’s great! But there is still a lot we don’t know, and there are a lot of questions left unanswered. Here are the major things we don’t know, and parts we’re waiting to better understand.

1.) We still don’t know exactly what the rule says — and that’s completely normal.
As the Washington Post points out, some folks are already working themselves into a bit of a conspiracy-theory frenzy about the fact that the full text hasn’t yet been published, even though the vote happened 24 hours ago.

But a delay between FCC votes and the release of the full, finalized text of the rule they’re voting on is completely normal — it’s part of the process, just how the agency always works. You can argue whether or not the rule should have been made public before the vote, but after the vote there’s a very specific procedure the commission needs to follow.

The FCC’s staff have to make their final edits, which means accounting for the dissenting arguments. And as we observed yesterday, those dissents are lengthy and quite detailed. In other words, it’s going to take some time to capture all of that information and collect it into the final rule, as FCC guidelines require.

After that, the commission can get it up on their website for all of us to read.

2.) We don’t know exactly when the new rules will take effect.
A rule made by the FCC doesn’t become the law of the land until after it’s published in the Federal Register, which can’t happen until after the text is finalized. The Federal Register, overseen by the National Archives, operates on its own timetable and it could be days to weeks after the time the rule is ready before it’s published. And after that, rules usually allow for 30 days, 60 days, or even longer after publication to go into full effect, to give all relevant parties time to adjust the things they need to adjust.

Add it all together, and we’re probably not looking for any actual changes before May at the earliest, and possibly not until much later this year.

3.) We don’t know to what degree interconnection agreements are covered (or not).
Netflix has been at the center of the net neutrality arguments ever since the fight started up last January. The streaming video goliath had been in standoffs with major ISPs — Comcast, Verizon, Time Warner Cable, and AT&T — over delivering TV traffic to subscribers. Netflix eventually had to pay the ISPs for direct connections in order to see streaming video traffic delivered to customers at reasonable speeds.

The disputes, though, didn’t happen at the “last mile” level, where the ISP runs a cable into your house and you request Netflix over it. They happened farther back, at interconnection — peering — points between the place where Netflix sends out data to a backbone carrier and your ISP picks it up from that carrier.

Netflix has argued repeatedly that the FCC should cover interconnection in any net neutrality rules; the ISPs have said the FCC can do no such thing.

What the FCC has to say about the matter so far is: “For the first time the Commission can address issues that may arise in the exchange of traffic between mass-market broadband providers and other networks and services. Under the authority provided by the Order, the Commission can hear complaints and take appropriate enforcement action if it determines the interconnection activities are not just and reasonable.”

That makes it sound like the FCC will not be putting any specific rules in place about what can or can’t happen with interconnection agreements, but that if one party (like Netflix or Verizon) files a complaint that the other party is being a jerk, the FCC can then take investigate to see if that’s true and, if so, take action (like ordering them not to be a jerk, or ordering them to pay a fine and stop being a jerk).

However, it’s unclear under what specific authority those investigations would take place, and what specific actions the FCC would be willing or able to enforce.

4.) We don’t know how this will affect “zero rating” programs or data caps.
Zero rating is when a company arranges it so certain data doesn’t count against your data caps. So for example, that thing where T-Mobile doesn’t count your streaming Pandora against your monthly data allotment? That’s zero rating.

Comcast has experimented with variations on the theme, as has Time Warner Cable. AT&T has tried a different approach, but with a similar outcome.

None of these programs actually change anything about the data connection: you access Pandora on your T-Mobile phone at the exact same speed you access any other streaming service. But because one counts against your data cap and the other does not, you are more likely to gravitate to the ones that don’t. And so those services that pay for zero-rating agreements become de facto preferred apps for millions of consumers.

So: are those kinds of arrangements kosher? Does using data caps as leverage, rather than data throttling or fast lanes, count as interference or is it just business? The answer is: we have no idea. The FCC’s released statements don’t address it at all, so we don’t know if the final rule will either.

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