Examining Today’s FCC Net Neutrality Action, and How You Can Have Your Say
By Perry Michael Simon on May 15, 2014
The news in Washington Thursday morning was about Net neutrality. What did the FCC do, how will it affect you, what can you do about it, and what does it all mean? It’s a long story, which is why this is a long post. But if you care about the free and open Internet, it’s worth going over. So….
Protestor disrupts hearing, provides entertainment. (C-SPAN)
What the heck was all that commotion about in Washington today? There were protestors camping out at 445 12th Street S.W., a packed hearing room… must have been something momentous going on. And from all the fevered anticipation, you’d think that today was the day the Internet would either become doomed or free.
Not so much, though. What happened today, as expected, was that the Federal Communications Commission approved a notice that opens its Net neutrality — or, depending on how you look at it, non-neutrality — proposal to comments by you, the American public. (Assuming that you’re American. If you’re not, they’re not looking for your comments, I suppose. Oh, well.) They didn’t vote on the merits of the proposal, just on whether to start this ball rolling.
But what ball is rolling? What does it mean for you? Okay, since they’re asking you to comment, and because you might just want to do that because this issue is clearly relevant to your interests (after all, you’re here, aren’t you?), let’s go over some details of what’s happening.
First, what Net neutrality is: simplified, it’s treating all Internet traffic equally. Nobody gets throttled, nobody gets priority, Netflix and your armpit hair Tumblr get the same treatment. Internet service providers deny that they throttle, but, let’s face it, when Netflix performance — even at non-peak hours — suddenly went from just fine to stuttering and buffering right as ISPs began to demand extra pay for peering arrangements from high volume content providers, your eyebrows were raised. So, we don’t have a totally neutral playing field, but it’s been limited up to now. The other issue is that without some kind of intervention by the ISP, there’s always the chance that one or two high-volume content operators — did someone say Netflix? — could be so popular that they choke off traffic overall, so the ISPs would like a way to control that, whether by shaping traffic or, well, making the big guys pay for it.
The FCC has tried to dip their toes into regulating the Internet and enforcing Net neutrality, with poor results. That’s primarily because the courts have slapped them down, most recently with the U.S. Court of Appeals for the D.C. Circuit ruling in January that while the Commission can regulate some things about the Internet (the “section 706″ authority that gives them the power to generally promote broadband deployment), they don’t have the authority to put neutrality and anti-blocking rules on ISPs because Congress never gave them that authority. The court added, however, that the Commission COULD do it if they declared the Internet a utility and regulated it like they used to regulate phone service, as common carriers (what you’ll hear called “Title II,” as in Title II of the Communications Act). The way the FCC had tried to do it, the ISPs were being treated as common carriers for some purposes and not for others. But you can’t have it both ways, the court said, winking and nodding. Regulate all the way or get off the pot.
So while the ISPs raced to take advantage of this, the Commission went back to the pot… er, the drawing board. More specifically, Chairman Tom Wheeler went to the drawing board and came up with a very controversial proposal to allow ISPs to go ahead and do deals that would give providers willing to pay for the privilege “prioritized” service, the “fast lane” about which you’ve been hearing. He bristles when you call it “fast lane,” and REALLY bristles when you suggest that this divides the Net into “haves” and “have nots,” citing safeguards in his proposal to allow the Commission to deny deals that they deem favoritism, but a few things stick out about this:
1. If prioritization doesn’t create “haves” and “have nots,” exactly what would anyone be paying for? All prioritization deals by nature create a preference — better service — for the ones who pay.
2. If you’re Netflix or Amazon or Hulu, you’re perceived as big enough to pay. If you’re a startup, good luck. Starting a new service with equal access is gonna cost you.
3. It’s STILL a halfway measure. If the courts struck down piecemeal regulation before, this is another round of it.
But, as I said, they didn’t vote at the open meeting today to approve or reject this proposal. They voted to let the public comment on it. And to provide the other option, they added a section proposing the whole nine yards: Title II common-carrier regulation of the Internet. That would turn ISPs into utilities and allow things like rate regulation while enforcing the idea that all content would have to flow at equal status.
Sounds good, right? And it’s better when you think that, like in some countries (the U.K. comes to mind), opening the wires to anyone who wants to set up an ISP and use those wires to sell broadband service can create tremendous competition, better service, and lower prices. It’s sort of eliminating one open (not really) market to create another. Great, sign us up. Except some folks would point out that doing so penalizes the companies who have spent billions wiring what they’ve already wired, who will be understandably perturbed when they find out that they can’t fully monetize what they’ve paid for without letting others — who didn’t pay for the cables, the leases, the rights of way, the equipment, the local franchising, the legal fees — waltz in and use their infrastructure. It’s like you build a toll road, and then the government tells you that you have to let others put up toll booths and compete with you on the road you built. Sorry, Charlie, the rules have changed.
So, there are two sides (maybe more) to this. But whatever you think of it, you now have your chance to comment. You’ll have until July 15th to do so, then until September 10th to reply to others’ comments. And here’s what you’ll need to do:
1. Go here and read the fact sheet setting forth all the elements of the proposals.
2. Go here to file comments. A lot of people will just type out a paragraph or sentence (“KEEP THE NET FREE I like cats kthx bye”) and file it, and you can do that. But try to do a better job — go look at the kind of comments filed by major players, follow that form (headers, spacing, etc.), and use citations to bolster your argument. Show examples to prove your points. They WILL consider what you say, moreso if you do it in a professional manner.
And we don’t know how this will play out. The two Republicans, Ajit Pai and Mike O’Rielly (yeah, i before e), are unlikely to support ANY regulation, but the Democrats are split — it seems like Jessica Rosenworcel is REALLY unhappy with Wheeler’s proposal, while Mignon Clyburn isn’t showing her hand yet. So, even though today’s vote was along party lines, that’s not necessarily going to mean a 3-2 win for Wheeler this time. And the volume AND the quality of comments might help.
But it also might be predetermined, because the FCC and the industries it regulates tend to be tight. Wheeler is a former cable industry AND wireless industry lobbyist. FCC commissioners from both parties tend to end up working in the industry after serving. Incestuous, it is. You’d be forgiven for assuming that this is a done deal. Still, you never know, and it doesn’t hurt, or cost you, to make your voice heard. If you care about the quality and the freedom of the Internet, this is the time to speak up, no matter where you land on the specifics of the issue. Whatever the FCC decides could make a huge difference in your Internet experience. Ball’s in your court.