Today Mozilla filed comments with the FCC with a clever solution that would fix the net neutrality fiasco. Attached is the Mozilla filing. I call the solution clever, because if the FCC wants to solve net neutrality Mozilla has shown them a path to do so.

Mozilla has asked to split Internet traffic into two parts. First is the traffic between ISPs and end-user customers. Mozilla is suggesting that this part of the business can remain under the current regulatory rules. The second portion is the traffic between ISPs like Comcast and AT&T and content providers like Facebook, NetFlix, etc. Mozilla recommends that the FCC reclassify this as transport under Title II of the Telecommunications Act of 1996.

The current dilemma we are facing with net neutrality is that FCC lacked the courage to classify the Internet network as common carrier business. Instead, in 2002, when broadband was growing explosively, the FCC classified all Internet traffic as an information service. And that decision is why we are even having the debate today about net neutrality. If the FCC had originally decided to regulate the Internet then it would have full authority to enforce the net neutrality rules it passed a few years ago.

But even in 2002 the FCC was a bit cowed by the political pressure put on them by lobbyists. The argument at the time was that the FCC needed to keep hands off the burgeoning Internet so as to not restrict its growth. It’s hard for me to see how classifying the Internet business as common carrier business would have changed the growth of the Internet and I believe it all boiled down to the fact that the cable companies did not want to be further regulated by the FCC.

The net neutrality rules written a few years ago by the FCC basically say that ISPs have an obligation to deliver all packets on the Internet without discrimination. Mozilla is suggesting that there is an additional legal obligation between ISPs and content providers to deliver their traffic without discrimination.

This argument might seem a bit obscure to somebody not in the industry, but it removes the dilemma of not being able to regulate the traffic between ISPs and content providers. The suggested change is to not classify data packets at the carrier level as information services, but to recognize it by its normal network function – that is the transporting of data from one place to another. Today transport is regulated in the sense that if a carrier sells a data pipe of a certain amount of bandwidth to another carrier they are obligated to deliver the bandwidth they have charged for. By putting the gigantic data pipes that extend between companies like NetFlix and Comcast under the transport regime it would treat Internet traffic like any other data pipe.

This change makes a lot of sense from a network perspective. After all, it’s hard to think of the transaction where NetFlix hands a huge data pipe to Comcast or AT&T as an information service. Comcast is doing no more than taking the data on that pipe and moving that data where it is supposed to go. That is the pure definition of transport. It only becomes an information service on the last mile of the network where the data traffic is handed off to end-user customers. There are already millions of other data circuits today that are regulated under the transport rules. It make logical sense to say that a 10 gigabit Internet circuit is basically the same, at the carrier level, as a 10 gigabit circuit carrying voice or corporate data. Data pipes are data pipes. We don’t peer into other data pipes to see what kind of traffic they are carrying. But by classifying the Internet as an information services that is exactly what we do with those circuits.

This idea gives the FCC an out if they really want net neutrality to work. I personally think that Chairman Wheeler is thrilled to death to see net neutrality being picked apart since he spent years lobbying against it before taking the job. So I am going to guess that the Mozilla suggestion will be ignored and ISPs will be allowed to discriminate among carriers, for pay. I hope he proves me wrong, but if he ignores this suggestion then we know he was only paying lip service to net neutrality.