Net neutrality update and a potential future of selective data capping and Internet price gouging

By on January 17, 2014, 12:09 AM
internet, gaming, broadband, isp, legal, kotaku, net neutrality

Live in the United States? Enjoy being able to stream and browse the Internet to your cold little heart's content? Don't want your Internet costs to go up? It's time to start thinking about what could be one of this generation's biggest issues for gamers: net neutrality.

Forget microtransactions and DLC nonsense: thanks to a D.C. court ruling earlier this week, we could be facing a future of selective data capping and Internet price gouging, and that's scarier than any other trend in gaming today. This could be the most important issue of this console generation for American gamers (and, really, anyone who uses the Internet).

Let's break this down.

I keep hearing this term "net neutrality." What exactly does that mean? How does it affect me?

Think about your Internet habits for a second: right now, if you live in the United States and you have a broadband connection, you can pretty much visit any website any time you'd like, for no extra fees, and unless there's a problem on that server's end, you don't have to worry that your access is being throttled in some way. Want to stream video on Netflix or play games online? No problem.

This is all possible because the companies who give us Internet access—Internet Service Providers (ISPs) like Time Warner Cable and Verizon—have operated under the idea of "net neutrality," a term coined by Columbia professor Tim Wu that essentially describes an Internet that is free and open to all. Under the provisions of net neutrality, your cable company wouldn't be able to play favorites with your web connection, making some sites and services run faster than others. Comcast couldn't decide to clog the pipes and make Facebook run more quickly than Twitter, for example. Or make League of Legends faster than Dota 2, because Riot is willing to pay more than Valve.

There's no legislation enforcing net neutrality, but courts and lobbyists have been battling over the idea of a free Internet for almost a decade now. It's a hot topic.

So if there's no legislation enforcing net neutrality, yet we basically have a free Internet right now, what's the problem?

In the early 2000s, executives at cable companies including AT&T and Verizon expressed interest in charging tech companies like Google and Yahoo premium fees to reach users on their services. In 2007, Comcast was caught interfering with customer access to BitTorrent, the torrenting service used most infamously for illegal downloads of media, software, and porn. (Mostly porn.)

For a long time now, lawyers and legislators have been going at it in that battle pit known as the U.S. court system, fighting over whether ISPs like Comcast have the right to make some websites or services slower than others. If cable companies were to set these sort of policies, it wouldn't be until after the legal mess is settled.

There was a big ruling this week, right?

Right! On Tuesday, the DC Court of Appeals decided that the U.S. Federal Communications Commission does not have the right to enforce net neutrality laws, because of some sticky terminology. (This Verge editorial takes a good look at why and how that happened, and you can read the entire court case here.)

Why were they in court?

In 2010, the FCC enacted a set of regulations called the FCC Open Internet Order. In short, the order set out to ensure that cable companies couldn't block or impede websites and services. There was a complicated legal battle, and Verizon appealed. This week, the court ruled against the FCC.

Proponents of net neutrality say this is bad news. Nothing will happen right away, and the debate will likely continue for months and years to come, but without legislation protecting net neutrality, there's nothing to stop, say, Comcast from deciding that hey, Netflix uses way too much bandwidth, and if they want the same speeds as every other website, they're going to have to pay a premium. Now, if Netflix has to pay more to your cable company, guess who foots the bill? (You.)

Online gaming uses a lot of bandwidth too.

Exactly. What if Time Warner decides that Sony and Microsoft have it way too good right now, with their bandwidth-draining online networks? What if AT&T is drooling at the idea that they might be able to get more of a cut out of all those downloaders and streamers on Steam and Twitch? If cable companies charge gaming networks more money, that cost will trickle down to us, the people who pay for those services in the first place.

Worse, what if ISPs wind up separated into factions? What if Sony decides to cozy up with Comcast, paying them a pretty penny to ensure that PSN runs smoothly, while Microsoft won't give? Imagine having to pick a new gaming system based on what will run more quickly on your network—this could give a whole new meaning to the term "console wars."

That could hurt streaming games, too.

Right: between Valve's Steam Machine streaming, Sony's PlayStation Now streaming service, and other initiatives we might see in the future, gamers are using more bandwidth than ever. Data capping is already a controversial topic, and observers worry that without net neutrality rules, we could see cable companies enact multi-tiered, expensive, complicated plans that hurt the average consumer.

Haven't cable companies already tried pulling off plans like that?

Well, yeah. For years now, the big guys have been experimenting with various forms of data capping, both transparently and not-so-transparently. In 2008, Time Warner experimented with a tiered capping system in a few small markets, to disastrous results. More recently, in 2012, they experimented with giving people small discounts to stay under a certain bandwidth cap, which was received a bit better.

Cable companies want people who download more media—movies, music, video games—to pay more, and some have enacted or experimented with bandwidth caps of 250 or 300 GB a month.

But just one PS4 or Xbox One game can be upwards of 30 GB. Killzone is close to 40!

That's a problem, don't you think? As file sizes continue to increase, particularly for gamers, data capping is becoming a major concern, especially in the wake of this net neutrality ruling. This generation of gaming consoles is designed for high-bandwidth gaming, and right now many Internet users are accustomed to unlimited bandwidth. If that changes, the results won't be fun for gamers.

Look at the world of mobile phones, for example. AT&T, like most mobile providers, has a data cap—if you use more than your allotted bandwidth per month, you have to pay extra. Last week, they announced a new plan that would allow some companies to sponsor that bandwidth—in other words, if a website like Facebook were to pay the fee, your use of Facebook wouldn't count against your monthly cap.

Now imagine if that sort of scenario hit your home computers and consoles. Imagine an Internet where cable companies could want you to go to some sites and not others—or where some games might be rendered unplayable and undownloadable unless you pay exorbitant fees.

Wow. That sounds horrible.

Yeah. Bandwidth caps aren't pleasant. Most of the big cable companies don't have limits on how much bandwidth we can use right now, but without regulation, that could change.

I still don't get the anti-net neutrality position, though. Why would anyone be against the idea of a free Internet?

As with most political issues, there's a lot of nuance here. There are a number of factors to consider.

For one, opponents of net neutrality laws argue that without government interference, cable companies could help fight piracy and other illegal activities. Some argue that if companies like Verizon and AT&T throttle the highest-bandwidth users—the 1% of Internet customers—it'd lead to faster Internet for average Joes and Janes everywhere.

Others are in favor of a free Internet as a concept, but against government regulation, particularly because "net neutrality" is such a nebulous term in the first place.

For their part, the cable companies have promised that even in the wake of this week's ruling, they're not going to start pummeling customers.

Here's Time Warner, for example:

Since pioneering the development of high-speed broadband service in the late 1990s, Time Warner Cable has been committed to providing its customers the best service possible, including unfettered access to the web content and services of their choice. This commitment, which long precedes the FCC rules, will not be affected by today's court decision.

And Verizon's statement:

One thing is for sure: today's decision will not change consumers' ability to access and use the Internet as they do now. The court's decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet. Verizon has been and remains committed to the open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. This will not change in light of the court's decision.

In other words, all that stuff about price gouging and speed throttling is all speculative for now. Nothing might actually happen.

Correct. But pundits and experts across the country are worrying about the ramifications of putting power in the hands of the cable companies, and really, how many times has your cable company done something you're happy with? Considering how often these corporations stick random fees on our bills, it's a little scary to imagine that cable executives could be meeting with tech companies right now, hashing out deals that could make browsing the web and playing games online more difficult for everyone.

So your position on net neutrality basically hinges on whether you believe that cable companies have users' best interests in mind.

Exactly. That's why so many people are in favor of net neutrality.

Is the FCC going to keep fighting?

Unclear. But to get an idea of what they're thinking, here's part of what FCC boss Tom Wheeler said on the agency's website this week (bolded emphasis mine):

The government, in the form of the FCC, is not going to take over the Internet. It is not going to dictate the architecture of the Internet. It is not going to do anything that gratuitously interferes with the organic evolution of the Internet in response to developments in technology, business models, and consumer behavior.

But the FCC also is not going to abandon its responsibility to oversee that broadband networks operate in the public interest. It is not going to ignore the historic reality that when a new network transitions to become an economic force that economic incentives begin to affect the public interest. This means that we will not disregard the possibility that exercises of economic power or of ideological preference by dominant network firms will diminish the value of the Internet to some or all segments of our society.

There is nothing about the foregoing that should cause serious anxiety, either to those watching out for the interests of internet users, or of those building and operating the facilities that make up the Internet. The key message is that the FCC has the authority – and has the responsibility – to regulate the activities of broadband networks. We will have ample opportunity to debate ways and means, to consider specifics in specific cases as they arise. But, there is no justification, and no serious basis, for doubt about the fundamentals.

Can Obama save us?

Maybe! As Gizmodo points out, the president campaigned on net neutrality back in 2008, although he also promised to close Guantanamo Bay, so hey.

It's also time we start hearing from Sony, Microsoft, and other gaming companies that might be affected by these issues. We deserve to hear where they stand. (Kotaku has reached out to a number of game publishers about net neutrality—Microsoft no-commented, and Sony hasn't gotten back to us.)

Long story short: This is a complicated issue, and it's one we'll be following for the foreseeable future. Gaming is expensive enough as it is.

Image credit: Laptop with broken screen by Shutterstock

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