How the FCC Can Protect the Internet from Pro-Corporate Judges and Greedy Telecoms
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Depending on whom you ask, the Internet is either set to replace or already has replaced the telephone as the most important medium of communication. As more and more people log on, the goal of regulating the industry so that the web remains a place where everyone can access all content without obstacles set up by online providers is of paramount importance.
The Federal Communications Commission (FCC) has long regulated industries such as telephone, radio, and television, but commissioners learned last week that they can't really regulate the companies that sell us Internet access. The D.C. Circuit Court's 3-0 ruling concluded that the congressionally-appointed telecommunications regulator had overstepped its authority in demanding net neutrality from Comcast, a major internet service provider (ISP) Net neutrality is the principle that all Internet content must be treated equally by internet service providers, where no content is given preferential treatment by ISPs.
There is a viable path for the FCC to circumvent the pro-corporate ruling; the commission has the power to change the way it classifies internet access services. So far two of the five FCC commissioners are on board; net neutrality only needs one more -- and a petition campaign fueled by people power has been launched to push the commission to support what is so clearly in the public interest.
Comcast v. F.C.C.
The D.C. Circuit Court's case stems from the FCC's discovery in 2007 that Comcast had been slowing down some of its high-speed Internet consumers' traffic to peer-to-peer file-sharing applications like BitTorrent. In effect, Comcast had been placing some sites on a traffic "fast lane," and others on a "slow lane." The agency demanded that Comcast stop on the grounds that ISPs cannot discriminate against specific types of web data. Though Comcast first denied they had interfered with the network speed to peer-to-peer sites, they later agreed to end the undisclosed interference. The next year, the FCC issued an order finding Comcast in violation of federal Internet policy.
In turn, Comcast sued the public commission, saying it did not have the power to enforce net neutrality. On April 6, the federal appeals court threw out the FCC's order. The FCC's lawyer on the case, Marvin Ammori, wrote on his blog: "It means, essentially, that the largest phone and cable companies can secretly block dozens of technologies used by large corporations, nonprofits, and individuals to speak and organize, and the FCC can do nothing to protect us."
The FCC, in enforcing net neutrality, was trying to ensure the Internet remains a level playing field, where no sites are on a "fast lane," and no sites are on a "slow lane." ISPs like Comcast have argued that controlling certain sites' load times will prevent high-bandwidth users -- like file-sharers -- from clogging the web for everyone else. But it's a slippery slope.
"ISPs want to be able to charge for prioritized Internet access," says Chris Riley, policy counsel for Free Press, a media reform non-profit that supported the FCC during the case. "Essentially AT&T can go to Google and sell them prioritized channels for their content. Or NBC merges with Comcast" -- this is actually in the works -- "and no one can buy a fast lane."
But even if fast lanes are sold at the same price to everyone, small players may still be priced out, Riley says.
"Right now the beauty of the Internet is that everyone has the same opportunity. That's why the Internet has been the vehicle for innovation that it has been," Riley says. "We want all players, small or large, independent, individual or incumbent, to have the same opportunities."
Beyond preventing the FCC from enforcing equal load times for all websites, the court's ruling could hamper the FCC's ability to ensure that internet policy providers comply with digital privacy laws. Further, it could adversely impact the White House's efforts to increase Americans' access to high-speed Internet networks. Currently the United States lags far behind other developed nations in broadband speed and reach.
Net neutrality's best chance
The good news is that the D.C. court's ruling hinges on something of a technicality. Currently, the FCC classifies internet access as information services rather than as a telecommunications network. Because of this, the court wrote, the FCC doesn't have authority under the current regulatory framework to enact basic consumer protections for Internet users.
Fortunately, because the ruling was written so narrowly, there is good reason to believe that if the FCC's commissioners were to reclassify internet access services as a telecommmunications network, it would have the power to regulate the web the way it does phone service. (Riley's interpretation of the court's ruling is that there is "very, very little" the FCC can do as long as the
According to Riley, this is net neutrality's best chance. The other two options -- appealing the ruling and trying to pass a bill through Congress -- would take way too long and "we're in a sufficient regulatory limbo that we need something to fill the gap."
Reclassifying web service as a telecommunications network would not only allow the FCC to regulate the Internet industry -- it also makes sense. The FCC designated the internet access networks as information providers -- under which most software is classified -- back in the age of AOL, when buying internet service also involved receiving a personal website, an e-mail address, and sometimes even a branded web browser. ISPs still provide some of these services, but now most people use free browser-based email and other essential (and inessential) web services from companies other than their network providers. Indeed, most of what we do online today involves communicating with other people, not just using web software.
Back then, the FCC naively didn't predict that the Internet was going to become a telecommunications network, which the commission has always defined as a two-way service that transmits information back and forth -- like phones. Today that describes the Internet perfectly, making it a legitimate interpretation of the Telecommunications Act as Congress wrote it, which will help it stand up against potential legal challenges, says Riley.
The best thing about reclassification -- besides the fact that it bypasses the bureaucracy that defines the court appeals and congressional processes -- is that it requires support from a simple majority of the FCC's commissioners. Already two of the five commissioners have voiced support for reclassification. Two others have said the court's ruling should not be used as a pretext for classification, while the fifth, Chairman Julius Genachowski, has not yet issued a personal opinion.
But we do know something about his views. Genachowski is an old friend of President Obama's, and he's credited as a contributor to the president-elect's technology platform, which included net neutrality, greater media diversity, and increased broadband access. He could be reclassification's third vote.
There will be a fight
While the FCC has not yet decided to go down the reclassification route, it's clear that's the path most likely to preserve the integrity of an egalitarian Internet. The appeals process can take years as can going through Congress, especially when so many elected representatives are calculatedly targeted by telecommunications lobbyists.
Although major ISPs -- like Comcast and Verizon -- say they are committed to a fair Internet, past actions indicate otherwise. And their official line against FCC regulation over their industry is something of a red herring. "They say that any form of regulation, net neutrality or otherwise, will discourage their investment in building out faster, better networks," Riley says. "Really what they mean is any form of regulation will increase competition and reduce their profit margins and will force them to invest in building better pipes. This isn't about turning these guys into utilities, it's about placing limits on what they can do, and not allowing them to discriminate."
The big ISPs are prepared to fight tooth and nail for their dubious claims. In February, when talks of reclassification had begun to surface, the biggest telecom companies and their lobbyists sent the FCC chair a rather colorful letter which reminds one of the Red Scare years. In it, they call reclassification a "Pandora's Box" and make sure to quote an interview a net neutrality supporter -- and co-founder of Free Press, Riley's group -- gave to the Socialist Project about his "radical agenda."
Such a scare tactic is so disingenuous, one would hope it is unlikely to sway the head of the FCC. But net neutrality opponents have a whole big fear squad behind them, influencing public opinion.
Night after night, Glenn Beck cries on FOX News about net neutrality, calling it an Obama-fueled Marxist takeover of the Internet. And a whole slew of astroturf groups, financed by Big Telecom and framed as pro-consumer grassroots movements, are capitalizing on this and are out there spewing anti-net neutrality myths. (One group, Americans for Prosperity, has so perfected its front it earned placement in the New York Times ' coverage of last week's ruling.)
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These companies know that reclassification is the most effective and expedient way of opening up their industry to much-needed regulation.
And it's of course not just about net neutrality -- it's also about net equality. If the FCC reclassifies the Internet as a telecommunications network, it will also free up Universal Service Funds currently used to expand phone access to under-served populations so they can also be used to give all Americans access to the Internet, a tool which can undoubtedly serve to empower and educate so many.