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The recent Federal Communications Commission decision to “protect” net neutrality was long awaited by activists, but it turned out to be smoke and mirrors, catering largely to service providers such as Comcast and AT&T. What is needed now is a collective movement by all Internet users throughout the world, not just the relative few who have been fighting on our behalf, to stop the demise of Internet freedom before it’s too late.
While the new FCC ruling requires that telecom and telephone companies maintain transparency in their policies, it does little to regulate those policies. Chief among the dangerous practices that it will fail to adequately regulate is the imminent “pay for priority” system desired by a few dominant Internet service providers. The FCC’s impotent ruling comes just as it is about to put its seal of approval on Comcast’s merger with NBC International, one of the world’s largest content providers. The conflict of interest is glaring, yet the FCC seems to have missed it; or just maybe regulators intend their decision as a Band-Aid to try to fix the problem.
The problem is that the new ruling, even liberally interpreted, gives the FCC little or no regulatory power over these giant telecom corporations. Pursuant to the 2005 Supreme Court decision in Brand X, the FCC acquired the authority to determine whether or not such companies operate under common carriage. In Brand X, the FCC, chaired at the time by Michael Powell, maintained that the Internet was an information (rather than a telecommunication) service, hence more like a cable television station and less like your home phone. On this basis, the FCC concluded that the Internet was not subject to common carriage. This was significant because, under the common law doctrine of common carriage, the Internet pipes, like the telephone lines, would be regarded as a public rather than private set of roadways. Thus, nobody can be prevented by a telephone service provider from speaking to anyone else over the phone lines. Likewise, common carriage for the Internet meant that no one could be prevented from using the Internet cables to communicate with others.
Internet common carriage is presently dead in the water. The upshot is that telecommunication and telephone companies can now decide, within certain limits of fair competition, what content providers can operate on the Internet. This is tantamount to turning the Net into an extension of the mainstream media, which has the power to decide what Internet surfers can see and hear in the way of news and information.
FCC Chairman Julius Genachowski claims that his commission’s new ruling would ensure that Internet users continue to have the same experience they currently have, but this is doubtful. To provide such assurance, the FCC needs to invoke Title II common carriage regulations and reinstate common carriage regarding Internet service providers. Instead, its ruling was based on Section 706 of the Communications Act, which limply requires the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”
In short, the FCC took the path of least resistance. While companies like Comcast and AT&T and their congressional cronies may now be decrying this ruling as a formidable attempt to fix what isn’t broken, it is likely that these same opponents are quietly relieved that the FCC did not flex its muscle to reinstate common carriage.
As a consequence, companies such as Comcast are in a powerful legal position to control Internet content by creating a “pay for priority” system, according to which major corporations with lots of money would be able to purchase faster connectivity or bandwidth while the rest of us would afford only poor connectivity. Giant companies would be in a position to have their voices heard loudly and clearly while the rest of the human population would have a faint voice and presence on the Net.