Science and Tech
The Net Neutrality Sellout: Still Bad, But What's Next?

Ross Lincoln | 16 May 2014 23:20
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What's Next?

Put simply, now is the time for everyone reading this to freak the hell out. Politely and reasonably of course, but freak the hell out you must. I'm not saying panic, but something close to it should keep you motivated.

The FCC has now posted the the Notice of Proposed Rulemaking (NPRM) for Net Neutrality online. You can, and should read the whole thing here. We'll be writing a longer breakdown of it soon, but for now it's vital that you read it thoroughly and carefully to understand the proposals enough to competently discuss them.

Next, start reaching out to the FCC. The commission's complete contact information
can be found here. It's important to note that while email is the most convenient option, it is still, even in 2014, considered a relatively easy - and thus, noncommittal - way of contacting public servants, making it far easier to disregard. You should send email, but you should back it up with handwritten letters and even phone calls (the numbers provided at the above link are for information purposes only, but calling to speak with a representative can be surprisingly effective.)

You also need to start contacting your elected officials. Here is an easy way of locating your representative. But, and I say this with very little malice, not all representatives are created equally. Though I don't intend to start a flame war, it must be noted that a sizeable contingent of congress is not remotely willing to support public opinion on this matter. If your representative is among them, it's important that you call them, write email and write handwritten letters, and encourage as many of your likeminded friends to do the same as you can.

There are also numerous petitions floating around urging Congress and the President to back an Open Internet. The efficacy of petitions is debatable, but signing them can't hurt. You can see some of them here, here, and here.

What should you say? While I stress you need to make up your own mind, the only solution that has the strongest chance of guaranteeing Net Neutrality is protected is for the FCC to reclassify broadband as a so-called common carrier, making it governable under the same rules telephone companies must follow (and, for that matter, very similar to airlines, highways and railroads). As noted above, the FCC itself is now inviting the public to weigh in on that possibility.

I previously discussed how the FCC has very weak knees when it comes to reclassification of ISPs as common carriers. The commission fears an enormous battle with telecoms and their supporters in congress, which is why they keep enacting these convoluted rules they hope will do the trick. But these rules keep getting shut down in the courts because, as we learned earlier this year, the FCC's 2002 decision to classify ISPS like cable companies, instead of common carriers, means the commission has revoked its own power to effectively regulate the Internet.

Thus the current proposal is just as likely to be challenged in court as the previous rules, and just as likely to be struck down. And let's face it: the Cable industry is comprised of total assholes. Wheeler may be their man, but I fully expect, as Congressman Waxler indicated earlier this week, that if these proposed rules are enacted, the Telecommunications industry will fight them as aggressively as they did the last, on simple principle. But of course, the FCC can fix this by un-revoking its authority to effectively regulate the Internet, which is why the best and most lasting solution is reclassification.

Of course the cable companies will fight tooth and nail over reclassification too. And so it is that many Congresspeople in the pocket of that industry will flip out, and we'll then hear from them that protecting the public trust is on par with treason. But... so what? Congress can't really do anything about it, unless they pass laws that specifically revoke the FCC's authority entirely, and the President would have to sign them. See, as President Obama is so fond of saying when asked about this particular selling out of the public trust, the FCC is, at least ostensibly, an independent agency. It has the power and authority to reclassify without the approval of congress. And as for the possibility of a lawsuit? Again, so what? It is highly unlikely that a court is going to rule it illegal for the FCC to use powers it has specifically been given under the law.

The FCC can reclassify, tell congress to suck it, and take whatever heat comes. That heat will be largely political, which might be why the public is being invited to weigh in on the specific possibility of reclassification. If the citizenry and advocacy groups make support for this idea as visible as possible, it will make it harder for the FCC to refuse to consider it.

And on the other hand, if we cannot convince the commission to consider reclassification, we can at least have a decent chance of convincing it to go back to the drawing board.

Whatever you decide to say, now is the time to say it. The public comment portion of this process allows for 60 days of public comment, and another 60 days for the FCC to respond. Go forth then, and hold firm. The Internet depends on it.

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