Hey FCC! Don’t F*** With my Call of Duty
Why Gamers Should Care about Net Neutrality Overreach
You’re playing Call of Duty. You’re about to go in for the kill.
Suddenly, your Internet connection chokes — and it’s your character that crumples in a bloody mess on screen.
That should never happen. Your broadband provider could prevent it — but probably won’t, thanks to the crazy way the FCC implemented “net neutrality” rules. In the name of protecting consumers, America’s Internet regulator actually deprived them of a smarter Internet experience — one that prioritizes the bits you really need right now (gaming, streaming live video and audio) over those you don’t (email, browsing, etc.)
It didn’t have to be this way. Back in 2014, the FCC had to rewrite its “net neutrality” rules. A federal court had tossed out its 2010 rules because they went too far in banning prioritization altogether. Commenters urged the FCC to take a more balanced approach, focusing on harmful prioritization but allowing prioritization that could help consumers — like avoiding lag in gaming. If the potential for abuse seemed high enough, the FCC could even adopt a presumption against prioritization, but allow that to be rebutted on a case-by-case basis by evidence that consumers benefitted — and, especially, if consumers themselves were demanding it.
The FCC ignored these sensible, moderate proposals — blinded by the essentially religious notion that “all Internet traffic is created equal.” That’s just not true. Any service that involves live transmission of bits suffers if it isn’t prioritized.
Instead, the 2015 rules simply banned prioritization, even if users requested it, if it involved any form of compensation to broadband providers. That effectively killed prioritization — and ensured lag for gamers, jitter for those watching, say live sports events, and so on.
But, you might say, isn’t “net neutrality” just about preventing ISPs from charging Internet tolls? Broadband providers can still let me prioritize my gaming traffic — they just can’t get paid for it, right?
Actually, the FCC’s rule bans any prioritization where the broadband provider receives “consideration” — a legal term that includes any compensation, even if it’s not monetary. The FCC’s concern is, supposedly, that Verizon might charge Microsoft and Disney exorbitant tolls for prioritizing Xbox Live and WatchESPN. But even if payment flowed the other way, it would still be illegal.
TechFreedom’s Tom Struble explains why:
If an ISP wanted to try appealing to gamers and cord-cutters by, say, advertising to consumers that it offers premium access to Xbox Live or WatchESPN, that would violate the ban on paid prioritization — even if Microsoft and Disney hadn’t paid for the privileges (or, truly, even if they had received payment from the ISPs), because using their trademarks in the ISPs’ advertising would constitute infringement, and the rights holders forbearing from suing the ISPs for such infringement amounts to consideration.
Could Verizon avoid this legal problem by advertising its FiOS service as offering better gaming and live video generically, without referring to specific brands? Yes. But any marketing expert would tell you that’s a lot less likely to help sway Comcast users to switch to FiOS because brands and images are powerful.
Just imagine the generic ad Verizon might run. Our video features Call of Duty game play because, as a non-profit using the footage to make a point, we can claim fair use of copyrighted material and the trademark. Verizon couldn’t do that in a commercial. And if the FCC’s rule require Verizon to run some lame, generic ad campaign, it’s not going be very effective at helping Verizon win over customers.
So why would Verizon bother?
Time for economics 101: sometimes, the only thing worse than having to pay for something is not being allowed to pay for it.
Simply put: if broadband customers can’t pay broadband companies for prioritization, they’re a lot less likely to be able to get prioritization. Indeed, they may not get it at all.
Let’s back up a step. You can already prioritize gaming or video streaming on your own connection. It may not be easy to set up, but most new routers allow you to do that.
But that’s not the real problem: you want prioritization of sensitive traffic over the entire network, especially the last mile. That means you want your broadband provider to give special treatment of the traffic you care about — over your neighbor’s less sensitive traffic.
The FCC would have you believe this is a zero-sum game: prioritizing any traffic means slowing everyone else’s. That’s not true: prioritizing the hardcore gamer’s traffic won’t make any perceptible difference in, say, his neighbors’ web browsing and reading email. Even most video “streaming” isn’t really sensitive to network congestion, because your computer can save a “buffer.”
But you can’t buffer gaming, a real-time video stream, a videoconference or a data-intensive app based in the cloud — think: editing a massive video file stored online. These things need prioritization.
And in a normal market, the people who use these services would pay a little extra for prioritization — either directly, as part of a premium monthly package, or indirectly, in small charges rolled into the cost of the app, which would get passed along to the broadband provider. Someone has to pay for the network management infrastructure needed to prioritize traffic.
If the people who demand prioritization can’t pay for it, it’s either not going to happen, or the cost of doing it is going to be passed on to everyone else. That’s a bizarre reverse-Robin Hood outcome, where the digital 99% pay subsidize the 1%.
That’s a long way of saying that banning prioritization “for consideration” effectively means banning prioritization. In theory, you could get a waiver from the strict ban, but as Tom explains, the FCC has made clear they will grant “such relief only in exceptional cases.”
Banning prioritization “for consideration” effectively means banning prioritization
What can be done about this? How can gamers and other users of truly live services push for a saner approach?
The same federal court that has twice blocked the FCC’s “net neutrality” rules is about to rule again on last year’s Open Internet Order. There’s a good chance the FCC will lose and may have to go back to the drawing board again. Or, Congress might finally reach a bipartisan deal to finally provide a clear statutory basis for the parts of “net neutrality” that aren’t controversial — stuff like letting users choose for themselves, even if that means choosing prioritization. That’s something Republicans have proposed, but which Democrats have dithered about, waiting for the court decision to see where the chips fall.
Congress might finally reach a bipartisan deal to finally provide a clear statutory basis for the parts of “net neutrality” that aren’t controversial.
What if broadband providers charge too much for prioritization, or otherwise abuse their market power? Well, the FCC already has a rule to cover that, the “general conduct standard.” There’s just no need for an outright ban on prioritization.
So long as the ban remains in place, there’s little chance that broadband, gaming and live video companies will risk potentially massive fines from the FCC — so prioritization will remain untried, despite its benefits to users. That’s why TechFreedom joined the lawsuit against the FCC — on behalf of leading Silicon Valley entrepreneurs focused, in particular, on live videoconferencing.
We’ll be eagerly awaiting a court decision.
