Escapist Editorials

Escapist Editorials
The FCC's Net Neutrality Sellout: A Wakeup Call And A Slap In The Face

Ross Lincoln | 25 Apr 2014 01:13
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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.

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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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