Ask the Engineer: How do I get a “fast lane” on the Internet?

Innovator: I’ve read that the FCC’s new regulations would prevent ISPs from charging web sites for fast lanes. If I want to buy a fast lane for my new startup, how much would it cost and where would I buy it?

Professor: Good question. Fast lanes aren’t a current practice unless we take the term to mean Content Delivery Networks like Akamai. CDNs offer to speed up web sites for a fee, and they’re very popular with large sites and some video streamers. The New York Times uses Akamai, and the Washington Post uses a competitive service called Instart Logic. Amazon’s AWS provides CDN services (along with a host of cloud computing services) and large content-oriented firms like YouTube and Netflix have built their own CDNs. Nobody wants to ban CDNs because they’re seen as valuable, competitive services that make the Internet work better for everyone by off-loading the Internet backbones.

When the FCC issued its Notice of Proposed Rulemaking on the “open Internet” in May 2014, it offered a number of observations that were simplified by the media into the “fast lane” construct. The most clear statement was in §110:

Today, we tentatively conclude that the Commission should adopt a revised rule that, consistent with the court’s decision, may permit broadband providers to engage in individualized practices, while prohibiting those broadband provider practices that threaten to harm Internet openness. Our proposed approach contains three essential elements: (1) an enforceable legal standard of conduct barring broadband provider practices that threaten to undermine Internet openness, providing certainty to network providers, end users, and edge providers alike, (2) clearly established factors that give additional guidance on the kind of conduct that is likely to violate the enforceable legal standard, and (3) encouragement of individualized negotiation and, if necessary, a mechanism to allow the Commission to evaluate challenged practices on a case-by-case basis, thereby providing flexibility in assessing whether a particular practice comports with the legal standard. We seek comment below on the design and justification of this rule.

The FCC floated this proposal even though it doesn’t exist in today’s market for ISP services because it believed permitting “individualized practices” would enable it to demand that all other services be open and non-discriminatory without falling into the “common carrier trap” that had caused the court to void its previous rules.

While there have been hints from some ISPs that they would like to offer “individualized practices” that amount to CDN-like fast lanes from time to time, they’ve never followed through. There has also been some academic speculation about individualized practices; The New Atlantis published a paper on it in 2006. The European Commission also flirted with the notion of “holistic view” on net neutrality in 2008.

The primary benefit of “third way” or “holistic” approaches to Internet service is not to web sites as much as it is to voice and video conferencing services, things that don’t work well on today’s Internet.

But this is all too nuanced for the media, so individualized bargaining became a super CDN and the debate over Internet regulation turned into a steaming mess.

It’s worth noting that there was no serious discussion of “fast lanes” or “paid prioritization” in the US until the FCC raised these questions. Hence, the FCC created a controversy with the May 2014 NPRM and then settled it with its February 2015 regulations.

Pretty clever, actually.