The FCC’s Net Neutrality Sellout: A Wakeup Call And A Slap In The Face

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The good news: the FCC says it is committed to net neutrality. The bad news: the FCC thinks you’re an idiot.

There’s no other way to put it: the Internet is probably fucked.

After three months during which both the Federal Communications Commission and the Obama Administration have offered specific, often unambiguous promises to uphold the principle of an open Internet, it appears that the FCC is poised to renege on those promises in a brazen sellout of the public good.

Yesterday the New York Times and the Wall Street Journal both reported that, according to highly placed sources, the FCC is about to release new rules governing broadband internet service that will allow broadband providers to negotiate prices with online companies on an individual basis. While the proposals have not yet been released to the public, what information is public indicates a system of rules intended to facilitate a tiered Internet that works better for those businesses willing to pay more, while removing important boundaries that prevent copyright holders from abusing allegations of infringement. In effect, the rules would bring an ignoble end to Net Neutrality.

In the aftermath of these reports, the ensuing furor prompted the FCC into serious damage control mode. A statement issued early this morning by FCC Chairman Tom Wheeler even flat out denied that net neutrality was threatened by the proposed new rules. But soon after this statement was released, another anonymous FCC source spoke to the Washington Post and essentially confirmed that the original reports were as bad as we feared. “Broadband providers would need to act in a commercially reasonable manner subject to review on a case-by-case basis,” the source said, all but confirming that tiered access is a fait accompli. Read more on this here.

Which brings us back to the inescapable conclusion: the Internet is probably fucked.

Subsidized Mineowner

Why We’re Here

We’re in this situation, first and foremost, for one reason: blatant, sickening corruption in the FCC.

The first attempts by the FCC to regulate the Internet happened in 2002, just as broadband services were beginning to overtake landline Internet access. Up until then, Internet access was essentially a subset of your phone service, which meant that they were, by default, governed under the same rules phone companies must adhere to. Phone companies are classified as “telecommunications services,” which makes them so-called common carriers. Common carriers, you see, must provide services equally to all customers – AT&T cannot say, disconnect the calls of someone who speaks critically about AT&T, or charge higher rates for the same service to ensure your calls actually go through.

With cable companies emerging as the primary providers of Internet access, the situation became more complex. Cable companies are classified as “information services,” which exempts them from common carrier rules applied to the phone companies. This is why, among many other things, they’re allowed to offer tiered packages for content ranging from bare-bones basic cable to fully loaded premium cable service. With access to the Internet straddling these two contradictory regulatory regimes, the FCC needed to clarify things.

Now, most of us would consider it obvious that the Internet works more like television or radio airwaves, a system that makes other services possible, rather than like a cable TV package. You don’t pay Time Warner for the radio frequencies they use to deliver content to you, you pay them for the content itself. You can still ditch your cable and watch network television absolutely free for this very reason. It’s the web-based businesses that are analogous to the cable industry, not the web itself. But that’s why you’re not a huckster getting filthy rich off contacts made thanks to government work. Then-FCC Chairman Michael Powell opted to classify broadband as “information services,” rather than as “telecommunications services.” In other words, with that decision the FCC voluntarily surrendered its own authority to meaningfully regulate the Internet. It’s probably not a coincidence then that Powell, upon leaving the FCC, became the cable TV industry’s chief lobbyist.

Of course, in 2002 the Internet as we now know it was still coalescing, making concerns about net neutrality something of a niche issue. However, by the Obama administration, those concerns were far more pervasive, so in 2010, then-FCC chairman Julius Genachowski attempted to create rules that would enshrine the concept of net neutrality firmly. Genachowski had two options: A) either reclassify Internet services as “telecommunications services,” or B) devise what amounts to semantic Ninjutsu with complex rules that attempt to do the same thing, but within the restrictions the FCC imposed upon itself.

You can see where this is going. Genachowski, unfortunately, went for option B. The reason, apparently, had to do with fears that a sudden reclassification of Internet services would spark an enormous legal battle by cable companies. This isn’t corruption, so much as the same level of needless cowardice we’ve come to expect from the Obama administration, but it accomplished the same result. Hilariously – and completely predictably, I might add – the half-assed workaround Genachowski’s FCC came up with failed utterly to avoid that battle. An alliance of Internet service providers immediately sued on, you guessed it, the grounds that the rules were expressly forbidden by the FCC’s own bylaws. And in January of this year, an Appeals Court found that the FCC was indeed in violation of said bylaws, and struck the rules down.

Finally, it’s worth noting that Current Chairman Tom Wheeler assumed office last November, just as the case was reaching a verdict. Wheeler, who spent nearly 40 years working as a telecommunications industry lawyer and lobbyist before assuming his current position, at first continued to oversee the FCC’s court battle. When the rules were struck down, he even, as we noted earlier, gave what seemed like a full throated endorsement of net neutrality principles. Today, however, it’s impossible not to draw the obvious conclusion that the fix was in from the start, and that his intent all along was to do the work of his former employers from within the government.

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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.

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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.

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