Net neutrality may be an unenforceable pipedream. Here’s why.

Big carriers and content providers are getting good at finding creative ways to evade net neutrality requirements

Net neutrality—the idea that carriers should not be allowed to provide preferential treatment to certain kinds of content—is a heavily politicized topic. With patriotic fervor on both sides of the aisle, last year’s FCC Open Internet rules pleased proponents and enraged opponents of the concept. (Several groups of carriers are suing the FCC over the rules, but the cases have yet to be resolved.)

Zero ratings and usage caps

But the reality seems to be that clever moves and creative definitions by carriers and content providers are increasingly making the FCC rules moot. While making efforts to avoid technically or obviously breaking the letter of the law, carriers and content providers are combining zero ratings and usage caps—neither expressly outlawed by the FCC—to get around the intent of net neutrality regulations.

At least, that’s the contention of a coalition of dozens of companies, including well-known outfits such as Etsy, Foursquare, Kickstarter, Medium, Mozilla, Pinterest Reddit, Upworthy, Yelp and Vimeo, which recently sent a letter to the FCC complaining about the practices.

Betraying my trust

At one point, I was fairly forgiving of zero ratings, also known as “toll-free data," in which the idea is that carriers make a certain amount of bandwidth available free for specific use cases or apps. Carriers subsidize this bandwidth for a variety of reasons, while app owners—Facebook, for example—typically pay for the bandwidth in order to encourage people to use their app.

Despite high-profile rollouts of zero rating schemes around the world, I believed that as long as it remained an isolated technique, it was unlikely to give big companies a material advantage over their competitors. My hope was that zero rating deals would ultimately increase the overall size of the connectivity pie.

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That didn’t happen. I was always worried that carriers might get greedy, and the rise of data usage caps is hard to see as anything but naked greed.

“Data caps make little technical sense—they’re unnecessary,” said Dane Jasper, CEO and co-founder of California-based ISP Sonic, in an email.

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When carriers artificially restrict the size of the broadband or mobile data pie, but then offer extra slices of data for free, but only from certain vendors who pay for the privilege, that’s hardly a level playing field.

The combination of zero ratings and data usage caps is not net neutrality, no matter how you slice it. That simple truth is recognized in net neutrality regulations in many other nations, but not here in the United States.

No way out?

Here’s the real issue, though. While updating net neutrality regulations to fight these practices might help in the short term, given the amount of money at stake, clever business people are likely to find new ways to game the rules to their own advantage.

At some point, enforcing net neutrality becomes merely symbolic, like posting a speed limit that only some drivers are obliged to obey.

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