Tom Wheeler, the commissioner of the Federal Communications Commission, wants you to know that he’s really, really a believer in net neutrality.
Methinks he doth protest too much. The net neutrality rules he’s proposed are at best on shaky legal footing. At worst, they could undermine the whole notion of treating Internet content equally.
In a blog entry on Tuesday, Wheeler set out — again — to clear up all the “misconceptions” people seem to have about his views on the subject and a new neutrality-related proposal he is circulating among his fellow commissioners. After receiving all kinds of flack for that proposal, which consumer advocates including yours truly have decried because it would allow broadband providers to create paid fast lanes for Internet content, Wheeler sought to reassure his critics.
The proposal is not a “final” rule, he noted; instead it explicitly seeks comments and feedback from Internet users. And the rule, no matter what form it eventually takes, doesn’t prevent the FCC from taking additional steps to protect the Internet and ensure net neutrality, also known as the “Open Internet.”
“All options for protecting and promoting an Open Internet are on the table,” Wheeler wrote.
By that Wheeler means that the FCC is keeping open the option of reclassifying broadband providers as “common carriers.” Those are companies that are required to treat all communications equally.
That’s basically what net neutrality is all about. A long and widely held principle for how the Internet should work, net neutrality basically insists that all traffic be treated equally. The principle would bar broadband providers from blocking, degrading or prioritizing traffic from particular online sites or services.
Consumer advocates have urged the FCC to reclassify broadband providers as common carriers, seeing that step as the only sure legal way for the FCC to guarantee net neutrality. But that’s precisely the route Wheeler has chosen not to take.
Although Wheeler has yet to reveal his Open Internet proposal to the public, the outlines of it are already known. Instead of relying on the FCC’s power to regulate common carriers, it would rest on the same authority that underlay the net neutrality rules that an appeals court struck down in January. Like those rules, the new proposal would bar broadband providers from blocking or degrading legal Internet. They would, however, give providers the flexibility to treat Internet traffic differently based on “commercially reasonable” reasons. This would allow providers to create toll lanes or charge Web sites and services for priority access to their customers.
Consumer advocates have been outraged at the proposal. The pay-for-priority proposal turns the whole idea of net neutrality on its head and allows the creation of a two-tiered Internet, a point Senator Al Franken made in a letter to Wheeler on Tuesday.
“Pay-to-play deals are an affront to net neutrality and have no place in an online marketplace that values competition and openness,” Franken said. “This proposal would create an online ‘fast lane’ for the highest bidder — shutting out small businesses and increasing costs for consumers.”
But Wheeler insisted that the course he’s chosen is the best one, at least in the short term. His proposal stands the best chance of getting new net neutrality rules in place quickly, because it takes into account the January court decision while at the same time allowing the agency to avoid having to embark on a time-consuming new regulatory path.
“The recommendation on which we seek comment would result in timely and meaningful Open Internet rules,” Wheeler wrote. “This (proposal) means that consumers, startup innovators, venture capitalists, and others who have been waiting … and waiting … and waiting for the certainty of rules would finally have something on which they can rely.”
Support for net neutrality has been the formal policy of the FCC since the mid 2000s, but that policy has been in a legal morass for years. After finding that Comcast had violated its Open Internet principles in 2007 by blocking legal file trading traffic, the FCC ordered the company to stop. But a federal appeals court overturned that order in 2010 saying that the FCC hadn’t shown that it had the regulatory authority to enforce net neutrality.
In the wake of that ruling, the FCC went through a formal rule-making process to create its Open Internet rules. In doing so, it tried to address the appeals court’s ruling by tying its regulatory authority to a provision of the 1996 Telecommunications Act that gives the agency the power to promote the deployment of broadband through a variety of means, including regulatory relief and price caps.
But in January, the same appeals court largely overturned those rules also. The rules are tantamount to regulations that would govern common carriers, the court said.
Common carriers are typically utilities and transportation companies that, because of high costs, have limited competition. Because consumers often have limited or no other choices, governments have regulated such companies to ensure that they treat all customers basically the same.
Although broadband providers look a lot like common carriers — and their telephone and telegraphy company predecessors were treated as such — the FCC had declared in the deregulatory fervor of the early 2000s that they weren’t actually common carriers. If they aren’t common carriers, then the FCC can’t force them to obey common carrier-like rules, the court said.
The ruling was read by many net neutrality supporters as a clear instruction manual by the court: To have enforceable net-neutrality rules, the FCC needed to reconsider and reclassify the broadband providers as common carriers.
But that’s not how Wheeler appears to have read the decision. Instead, he’s taken hope in a more obscure part of the court’s decision. The court, in explaining why the previous Open Internet rules should be considered tantamount to common carrier regulations, noted that they forced broadband providers to treat all traffic the same and didn’t allow them to charge companies like Google and Netflix for fast lanes to their customers. Non-common carrier regulations would allow for such “commercially reasonable” discrimination, the court said.
Wheeler appears to have seen this aside by the court as a green light to try to re-craft the previous Open Internet rules. Instead of barring broadband providers against discriminating against any traffic, they’d be allowed to do so on a “commercially reasonable” basis.
In his blog post Tuesday, Wheeler said that his critics were focusing too much on the wording change.
“There has been a great deal of discussion about how our proposal to follow the court’s roadmap will result in a so-called ‘fast lane’ and Internet ‘haves’ and ‘have-nots.’ This misses the point,” Wheeler wrote. “The proposed rule is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.”
As he did in a blog post last week, Wheeler stressed that the wording change is largely semantic. Under the new rules, broadband providers wouldn’t be allowed to degrade regular Internet access to create the new fast lanes or to force consumers or online content providers to use them; and wouldn’t be allowed to provide priority service exclusively to corporate affiliates or to block the exercise of free speech.
“In other words, the Internet will remain an open pathway,” Wheeler wrote. “If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it.”
In his post, Wheeler decried all the legal uncertainty that has enveloped net neutrality and kept it in a legal limbo for the last decade. His proposal would finally end all that uncertainty, he said.
“I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation,” he said.
But by ignoring the court’s guidance that the FCC’s only clear authority to put in place real net neutrality rules comes from its power to regulate common carriers, Wheeler’s proposal runs the high risk of at best perpetuating that legal uncertainty and at worst cementing into place the antithesis of net neutrality. That’s because it’s not at all clear whether the rules will actually do what Wheeler says they will do or, if they do, whether the authority the FCC claims for issuing the new rules actually give it the power to enforce them.
As the court recognized, net neutrality is, at its base, is a common carrier regulation. And the court said you can’t regulate companies as common carriers if you don’t consider them to be common carriers.
The closer the FCC’s proposal gets to being a true net neutrality rule without actually calling broadband providers common carriers, the more likely it is that the big broadband providers will challenge it and that the appeals court will rebuke the FCC yet again. On the flip side, the more flexibility the proposal gives broadband providers to create toll roads and fast lanes on the Internet, the less it actually looks like net neutrality and the more it helps to seal in place the idea that we all should expect an Internet that looks a lot more like cable TV.
The broadband providers are likely to fight any regulation that looks anything like true net neutrality. So the FCC ought to ground such rules on a firm foundation rather than the flimsy one that Wheeler is proffering.