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The comment date for the FCC’s Net Neutrality docket has come and gone, and maybe the flood of “public” comments will come to a stop. Or at least slow down. What a waste of time and electronic memory. If you pick any random group of comments from the “public” (i.e., not from industry or institutional parties), you’ll see they are mostly identical text, parroting somebody’s party line. Once beyond those, the more substantive comments often point out that the FCC’s focus is too simplistic and would lead to disaster.

The FCC proceeding is limited to the relationship between Internet access providers (like cable operators and cell phone operators) and their retail customers. The FCC’s underlying assumption is that whenever a retail user experiences degraded access to some Internet content, it is due to nefarious behavior by that user’s Internet access provider. Since a number of comments have pointed out a variety of causes for Internet congestion, the FCC will either have to expand the scope of the inquiry to fully understand the issues, or (as likely) do nothing.

In the FCC’s overly simplistic view of the Internet, there are three types of players: The retail Internet access providers like Comcast, AT&T and Verizon, the content providers (the FCC calls them “edge” providers) like Netflix, Disney and Facebook, and the transit networks in between like Level 3 and Cogent.

And, in the FCC’s view, the content providers are never the cause of degraded access to content (false), the transit networks are competitive with one another (true) and therefore are never the cause of degraded access (false), and thus any degraded access must be due to the behavior of the retail access providers (false). The more than one million “public” comments buy in to this line.

One important group of players that the FCC ignored is the end users who buy access from the retail access providers. End users can often be the cause of their own degraded access, or can cause degraded access for their neighbors. Applications such as peer-to-peer uploading and downloading of files or downloading of streaming video can affect access to other content.

But the assumption that the content providers are never the cause of degraded access is demonstrably false. In May of 2014, a web hosting service (content provider) called Neocities thought they would show the FCC what end users experience when they encounter degraded access to content.

They installed a program on their server that would identify access requests from FCC staffers.

They did this by getting a list of all the Internet Protocol (IP) addresses used by the FCC. When a request for content came from any of those IP addresses, they would throttle back their delivery speed to the speed of a dial-up modem. They thought they would punish the FCC. It would teach the FCC a lesson, they thought.

Instead, it demonstrated how a content provider could discriminate among end users of specific retail access providers, and could degrade end user access to content.

While that was just a prank of sorts, there are legitimate business reasons that might cause a content provider to behave in that manner. Most notably, a content provider in a retransmission dispute with a cable operator over access to video programming could retaliate against the operator’s Internet access customers using the same technique as Neocities. In fact, that has already happened. Last year, CBS blocked access to its online programming for Internet access customers of Time Warner Cable and Bright House Network.

Earlier this year, Viacom blocked access to customers of about sixty small cable operators in another retransmission dispute.

And earlier, Fox threatened to behave the same way.

The potential for extortion by content providers with market power is evident.

Facebook, for example, could decide to act like TV stations that demand retransmission consent payments. It could tell a small cable operator that access to Facebook would be degraded or denied unless the cable operator paid Facebook an “access consent” payment.

Indeed, there are times when portions of the Internet become congested.

Sometimes the Internet becomes “sluggish,” but it’s impossible to know whether it’s due to congestion in the local access network, in a transit network, or at the server that stores the content. Traffic management procedures can be instituted by the content providers, by the transit network operators, and/or by the retail Internet access providers.

Some content, like email, is not very time sensitive, so it can be delayed a bit.

Streaming videos, on the other hand, don’t have that flexibility. But the video content providers can take advantage of adaptive streaming.

Content providers can use adaptive streaming, like DASH, to throttle back the data rate of a video stream by delivering a stream with a lower spatial resolution during the duration of the congestion. Or they can cache copies of their video files on multiple servers to cut down on congestion in the transit networks.

The bottom line is that this FCC proceeding, because it deals with only one aspect of a very complicated ecosystem, can’t possibly lead to anything good.

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