FCC's net neutrality rules stack the deck in favor of the big boys

17 September 2014 by Steve Blum
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What would Billy Bob do?

Even without the back and forth voting over whether or not to treat broadband providers as common carriers Thursday’s California Public Utilities Commission meeting offered an excellent discussion of net neutrality and the regulatory questions that surround it (assuming you’re into that sort of thing, of course).

Helen Mickiewicz, the CPUC’s assistant general counsel, walked commissioners through the main issues. You can see the video here:

CPUC Commission Voting Meeting – September 11, 2014

The net neutrality discussion begins at about 1:17:00 and runs for about an hour and 20 minutes.

One of the first questions Mickiewicz fielded was from commissioner Carla Peterman, who asked how the FCC’s proposed rules, which rely on highly subjective standards, would work (~1:38:30 on the video). Mickiewicz replied…

The way we understand this would work is that…Billy Bob, edge provider, enters into a deal with Comcast. And Billy Bob thinks the deal isn’t reasonable, isn’t commercially reasonable. For whatever reason. One of the problems with the commercially unreasonable practices is there’s really no way for Billy Bob to know what other deals someone else has entered into because there’s no disclosure requirement.

So, Billy Bob goes to a convention and finds out someone else got a better deal. What does that company do? It can challenge at the FCC, it would file a request with the FCC to review the deal and then the FCC would apply the proposed criteria that it has put into the rulemaking.

And actually, they’re pretty vague. They have more detailed criteria in the data roaming context than what they have proposed here. So it’s possible the FCC will have a follow up where they’ll adopt more detailed criteria. But at the moment what they’ve got isn’t all that detailed, so I’m not sure how it would work.

But the customer – the edge provider – would have to seek redress from the FCC. It is possible that before signing the deal Billy Bob could go to the FCC and say they’re offering me a bad deal. But I suspect that the FCC wouldn’t want to review it until it was done.

The problem I have with the FCC’s – chairman Tom Wheeler’s – proposal is that Comcast has platoons of lobbyists and lawyers and millions of dollars of campaign cash to hand out. In Wheeler’s no lobbyist left behind world, Billy Bob doesn’t stand a chance.