Escapist Editorials

Escapist Editorials
The FCC's Net Neutrality Sellout: A Wakeup Call And A Slap In The Face

Ross Lincoln | 25 Apr 2014 01:13
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Uncle Pennybags

Where We Are Now

As noted above, Chairman Wheeler is, so far, insisting that contrary to the alarming information provided by FCC sources, these rules will in fact protect net neutrality. That may very well turn out to be true, but what he's said so far doesn't provide much reason for optimism.

Tellingly, Wheeler does not actually deny the specifics of the New York Times and Wall Street Journal reports. Instead, he offered only the highly ambiguous promise that "the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted." We could spend hours talking about the severe differences in opinion between citizens and corporate entities over what constitutes "harmful behavior," so forgive me for thinking that reassurances from a lifelong industry insider sound like complete bullshit.

Further, what details Wheeler did provide in that statement are very troubling. For instance:

That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
That no legal content may be blocked; and
That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

These vague platitudes only raise more questions than answers. For example, no information is provided as to just how the agency plans to monitor what is and what isn't "unreasonable", a concern shared by April Glaser of the Electronic Frontier Foundation. "[W]e have no idea how 'commercially unreasonable' will be treated, and we don't trust vague language," she told The Escapist. "We don't anticipate that the FCC will act in the best interests of the public with this language when the final proposals are released in May, because someone could argue that it's commercially reasonable to charge google or netflix more money to reach the subscriber because they take a lot of power to get these heavy services, especially video services, to consumers. But that kind of discrimination is, again, just disastrous to the innovative fabric of the Internet."

Wheeler may insist that these proposals honor the spirit of net neutrality, but to put it politely, they don't match up with the concept as it is widely known. "[Chairman Wheeler] clearly sees that if there is a commercially reasonable method to allow ISPs to charge someone more for faster access or provide a base access for everyone and a faster tier for those who can pay for it," Glaser told us. "If he considers that to be commercially reasonable within the scope of network neutrality, then we're clearly working with different definitions."

More frightening, Wheeler makes no mention of precisely how "illegal" content would be blocked, or whether or not sites accused of providing such content will be able to address concerns rather than be summarily taken down. Frankly, that point appears to be just a euphemistic way of slipping in open-ended exceptions that make it easy for copyright holders to take down small websites. If that sounds familiar, it's because similar provisions were at the heart of objections to the failed CISPA, SOPA and PIPA bills.

My take away - and I suppose, what should always have been my take-away - is that it's time for those of us committed to an open internet to accept that our ostensible allies within the government are, at best, fair weather friends. I don't mean in the "politicians amirite?" sense. I mean those who profess to support these principles unambiguously cannot be trusted to follow through, which means moving forward that all debates on the matter must be undertaken from the position that we are always in danger of being sold out. It's a deeply cynical framework, but better we know who our opponents actually are, than rely on assurances that are quickly discarded whenever those making them think they can do so without punishment.

Peasant Revolt

What Can We Do?

The one bright spot is, as the EFF pointed out to me, that the FCC intends to submit these new rules to public comment before attempting their implementation. Starting May 25, a Notice of Proposed Rules Making (NPRM) will be posted and the public will be able to comment on their relative benefit to the public good. It is, in Glaser's words, an "extremely opaque process," and one consumers often don't know exists, but it's vitally important. "The FCC is actually mandated to act in the interests of the public," Glaser continued, "and the comment process is actually the best way to document public testimony."

While the testimony made by citizens is not binding on the FCC, it can be useful not only in swaying the commission's opinion, but laying the groundwork for challenges to such policies. For just one example, in 2002, the FCC attempted to implement new rules that would have greatly relaxed rules governing ownership of broadcast companies. The public response to these proposed rules was overwhelmingly negative as thousands added comment to the rules' NPRM. Unsurprisingly, FCC chairman Michael Powell brazenly ignored that response and further, prevented any discussion on key components of the proposed rules; they were enacted as soon as the mandated public review period ended.

However, a consortium of public interest groups sued the FCC, ultimately winning in 2010 in part because of the commission's disregard for the public's opinion. As a result, some of the new rules were struck down, and the FCC was reprimanded for failure to publicly disclose certain aspects of the rules. (Read more about it here.)

By any measure, the FCC under Obama is less prone to blatant dismissal of public opinion than under the preceding administration. If enough of us make our opinions on these proposed net neutrality rules known when the NPRM is posted, that may well end up prompting changes without having to resort to litigation. But make no mistake: this is an emergency. Hide ya kids, hide ya wife, etc. If the framework we're operating under is as corrupt as it looks, we may just be looking at a broken Internet.

Welcome to the online slums, people.

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