Comments welcome. That is where we are at the moment in the debate over Net Neutrality and any future U.S. government regulation or rules that may govern how the Internet works. Today the Federal Communications Commission (FCC) voted 3-2 to put forward the new rules changes proposed by FCC Chairman Tom Wheeler. The vote does not mean the rules are now in effect. The vote merely makes public those rule changes and opens up a 60 day period for public comment on the actual rules. Following that period of public comment there is another 60 day period to allow rebuttal to any comments. Following that, the FCC will then make decisions on going forward and on what the actual rules will entail. FCC Chairman Tom Wheeler has publicly put the commission on the line as wanting new rules in effect by the end of December 2014.
Here’s an excerpt from the FCC Press Release:
The FCC has previously concluded that broadband providers have the incentive and ability to act in ways that threaten Internet openness. But today, there are no rules that stop broadband providers from trying to limit Internet openness. That is why the Notice adopted by the FCC todays starts with a fundamental question: “What is the right public policy to ensure that the Internet remains open?”
That’s the summary of what happened today. Before we get into specifics let’s understand that today’s vote was a necessary and important step in the process. Without a vote, the proposed rules and any comments for or against them would not be officially debatable, nor could there be any action taken by the FCC to protect (or gut) the principles of Net Neutrality. Do the proposed rules changes leave room for controversial issues like a tiered Internet with a possible “fast lane” or “paid prioritization”? Yes, they do. But it is important for all following this debate to understand that today’s action by the FCC was required and necessary. That said, the debate that has been heated so far, and is entering a new phase that is even more crucial to deciding the future of the Internet.
Here is a summary of the rules changes as proposed:
Wireless and Wired Networks Under the Same Umbrella
Wireless and wired networks have, since 2010 been subject to different net neutrality rules thanks in large part to a compromise between Verizon and Google. Because the amount of wireless spectrum is limited, wireless providers have had an easier time dealing with issues than wired providers have been subject to. One of the proposed rules changes would seek to bring discussion over wireless and wired closer to together. The downside is that it potentially reopens the debate over wireless discrimination again. The upside is that the rules changes could specify the same standards for both wireless and wired networks. That does not exist currently.
Why is this important? In some rural areas, providers such as AT&T and Verizon are seeking to entice customers into using LTE (wireless) networks instead of investing in the more expensive infrastructure to provide a wired connection. Without having both a wired and wireless options custom choice and competition is decreased.
The rules change would require an ISP that seeks to set up prioritization deals, block or slow content, to inform customers so that they can make informed choices.
Why is this important? Say that Comcast can deliver faster HBO Go streaming because of a paid prioritization deal that puts HBO Go content in a “fast lane.” In this example, HBO Go did not cut a similar deal with Verizon. So, theoretically the customer has better information before making a choice. This sounds like a good idea at first glance, but does not address the many areas of the U.S that don’t have multiple providers to choose from. Transparency is a good thing but in areas with limited choices, it may just serve to highlight how limited those choices may be.
Just Say No to Blocking
This is one of the areas that will be the most contentious in the debate ahead. The FCC is acknowledging that your ISP could block or degrade certain content to the point that it is useless. By setting minimum standards that all ISPs will have to meet the idea is that content can’t be blocked or degraded.
Why is this important? Opponents of a “fast lane” or prioritized service see this as setting the upper speed limits for the “slow lane.”
Paid Prioritization is a No-No (Maybe. We Think.)
This provision will see the biggest fight. Essentially the rules changes propose that “paid prioritization” will continue to be illegal until proven otherwise. But the FCC states that its presumption on this issue could be proven false. The translation here is that a lot of industry lawyers will earn big bucks proving otherwise. If proven false, than say hello to the “fast lane.” In the FCC Fact Sheet, the question is specifically referenced as seeking comment to determine “if paid prioritization should be banned outright.”
Why is this important? In order for something to be challenged it has to be in play. By saying “paid prioritization is illegal” and allowing that to be challenged the slope is set to be slippery all the way down until the bottom drops out. If a minimum speed is set for the “slow lane” it wouldn’t be unfair to presume an argument for a “fast lane” with higher speeds that do no harm.
The FCC wants to set up a series of dispute resolutions with an ombudsperson in place to react to both formal and informal grievances, leaving room for the FCC to also investigate claims itself in a separate process.
Why is this important? It’s nice to think someone is looking out for you. But by definition an ombudsperson is reacting after the fact to a complaint of wrongdoing. To be fair, this would be how wrongdoing would begin to be investigated. But after the fact.
Section 706 or Title II
Section 706 of the 1966 Telecommunications Act mandates the following:
The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.
As a part of today’s proceedings the FCC is now officially seeking comment as to whether Section 706 or Title II should govern its oversight of the Internet. After suffering defeat in court the FCC maintains that there are essentially no rules in place currently and that rules need to be put in place before commercial innovation moves so far forward in an unregulated marketplace, that any reactive measure to correct bad behavior would be difficult to implement. In short, Section 706 already allows for paid prioritization, (because it doesn’t specify it can’t exist) thus new rules are needed to prohibit or regulate it according to Wheeler. Is Section 706 enough or should the FCC enact provisions under Title II of the Communications Act?
Many Net Neutrality advocates prefer Title II. Title II grants the FCC the authority to declare ISPs as common carriers and effectively regulate the Internet as a public utility, much like the telephone companies. FCC Chairman Tom Wheeler is using Title II as a threat hanging over ISPs in this debate. If the FCC were to pull the trigger on Title II things would quickly escalate into a protracted legal and political battle.
Those saying today that the FCC gutted the Internet and killed Net Neutrality have every right to be concerned. But they are being a bit premature in writing obituaries. The stakes are still high and the debate continues. Something had to be on the table in order for a vote to occur today. The rules changes as proposed and the questions asked should leave us all full of skepticism as the process moves forward.
Keep this in mind. The depth of outrage and debate since news of the proposed rules changes leaked two weeks ago have pushed this debate further into the open than it probably would have been without it. Those who have raised their voices so far have helped to keep the spotlight tightly focused and burning bright. For those concerned this is no time to become complacent.