Wheeler’s Moment of Clarity
by ALFREDO LOPEZ
Federal Communications Commission Chairman Tom Wheeler proposed Wednesday new FCC rules that would protect and preserve the Internet’s Net Neutrality.
The proposals, coming after years of debate and an intense campaign of grass-roots community organizing and activist pressure on the FCC, would treat Internet communications as a Title II service — the same FCC Title used to govern telephone communications. That change was at the center of activist movement demands since Title II services are automatically neutral under FCC rules.
(An important clarification: this does not mean you can get high-speed service for the same price as regular modem service. It means that access to data and content speed to your device must be the same. If you have a slower connection, all content would flow at that speed. Faster connection, all content flows at that faster rate.)
It is a stunning victory for the Internet-freedom movement which includes scores of organizations nationwide and that movement celebrated the announcement immediately.
The questions now are whether the FCC will approve the Chairman’s proposals, what the reaction might be from corporations (like Comcast) who vigorously oppose this change and what, if those corporations unleash their lobbyists, might Congress do.
At this point the answers seem to be: yes, scream and not all that much but in Washington you never know.
In any case, what Wheeler has proposed is historic because it supports the essential definition of the Internet that drove its creation and has driven its growth: the freedom of all people in the world (independent of income, access to technology or political power) to access and use it openly and freely. Few technologies in human history have served that principle so perfectly with such massive social and political impact.
Net Neutrality is the principle that governments and Internet service providers should treat all Internet data equally and not discriminate or charge different rates based on user, content, site, platform, application, type of attached equipment, or mode of communication. All telephone service is “neutral” in this way: you can’t offer a faster phone call or cleaner connection for more money, for example.
It became an issue when high-speed Internet providers (mainly cable companies) complained that the FCC wasn’t allowing them to differentiate in their rates based on types of content and other user differences. Telephone companies offering high-speed Internet had to abide by the neutrality rules because they are, after all, telephone companies. The FCC calls them Title II “common carriers”. But when the cable companies entered the Internet business, offering high-speed connection, things became a bit murkier.
The FCC immediately lumped them together with the telecoms and applied the neutrality rule. But they aren’t phone companies: cable service, which routinely offers a menu of optional pricing programs based on what you’re getting and how easily you get it, isn’t covered by the same rules. The rules that apply to the telephone industry, they argued, shouldn’t apply to them. If they offer Internet service, it should be regulated just like the cable TV service they make their billions on.
In other words, cable companies are not “common carriers” regulated under Title II and so they should be allowed to offer content in differently paid “tiers”. The cable industry unleashed its usually successful (and seldom opposed) army of lawyers and lobbyists to make the point.
They apparently hadn’t counted on the Internet activist movement. Mobilizing quickly and powerfully, the movement’s scores of organizations joined coalitions to argue that these changes would favor big corporations and well-heeled users…and penalize most of the two billion people who use the Internet.
For example, mega-corporation Comcast has already announced plans to charge Netflix (the movie distributor) special rates for a higher speed connection to its users: an extra expense Netflix would cdertainly pass along to users. So if you want to watch a movie on Netflix using an Internet connection (which most do), you would have to pay a higher rate to get the smoother and higher-quality version. If not, your viewing experience would be inferior. But that’s just the start of the nightmare activists were envisioning.
At some point, for example, content providers (website owners) not paying a higher rate could be excluded from higher speeds as the Internet develops faster data transfer technologies. People who seek data from non-paying content providers — from your neighbors, to your local school, to (you guessed it) social change organizations — would be penalized with much slower rates and effectively dissuaded from visiting those sites. That would result in a form of effective censorship.
That was not the intent of the Internet, not the principles on which it was developed and not a reflection of the democratic and open character that has made this communications technology the most popular in human history, activists argued.
For over ten years, the FCC has tried various compromise changes as the corporations filed lawsuits and the activists kept organizing and pressuring. About a year ago, the activist movement began pushing the obvious solution: if the cable companies say they shouldn’t be net neutral because they aren’t Title II, just make their Internet service Title II and the debate is over.
That was the message echoed in late 2014 by a guy who carries a bit of weight in Washington, President Obama. In his own statement, Wheeler didn’t mention the President’s support of Net Neutrality but you could feel Obama’s smiling presence nonetheless.
In his statement, Chairman Wheeler made an impeccable argument for Net Neutrality largely based, ironically, on the preservation of robust business competition administering a soft but obvious kick in the cable industry’s shins in the process. He recounted how he ran a 1980s start-up called NABU that was using cable lines to deliver home computer content. It was competing with another new company, America On-line (AOL), which was using phone service to deliver its data. If you never heard of NABU (as most haven’t) but have heard of AOL (as most have) you can figure out who won that battle and Wheeler pointed out that the difference was that AOL was using a Title II carrier (the telephone industry) and NABU was using cable.
“Why that is highlights the fundamental problem with allowing networks to act as gatekeepers,” Wheeler wrote rubbing a bit of salt into the corporate wound and making one wonder if the cable companies are going to ask for a refund of the money they paid Wheeler when he was lobbying for them.
“The internet must be fast, fair and open,” his statement reads. “That is the message I’ve heard from consumers and innovators across this nation. That is the principle that has enabled the internet to become an unprecedented platform for innovation and human expression. And that is the lesson I learned heading a tech startup at the dawn of the internet age.”
Lovely and unique: a Washington regulator, a former lobbyist for cable of all things, doing the right thing. Now what?
One change that might not be immediately obvious is to cell phone service whose data flow resembles a Saturday night in a Wild West town. Companies get completely legal “kick-backs” from app providers for giving them privileged positions or more direct service. Some throttle speed for certain kinds of data. Some even offer “sponsored data” which gets preferred service treatment in exchange for a sponsorship fee.
All of that will be sharply reviewed and much of it may disappear. Data retrieval on a cell phone will quickly become more democratic under this proposal. But potential loopholes abound and eyes will be on the FCC to see how it handles those.
All of this, of course, depends on the FCC approving the Chairman’s proposal. Most observers think that’s inevitable. Wheeler has the two votes he needs in the five-person body — Democrats Jessica Rosenworcel and Mignon Clyburn — and it’s not all that clear that the two Republicans on the Commission will cast a useless vote against him.
There’s little doubt that the cable companies will shout and may sue. The problem is that the FCC has the absolute legal right to classify something as Title II based on its regulatory responsibilities and powers. So a lawsuit can’t question its right to make the decision; it must be limited to whether the decision itself is legal and consitutional. So a legal challenge could be mired in court for years while Net Neutrality becomes an unshakable pillar of our communications culture. By the time any court might overturn it, implementation might be far too costly and unpopular.
Finally, there’s our Congress: an institution that has distinguished itself by making headlines rather than laws. The Congress isn’t going to directly contradict a government agency like the FCC, although some of its members will surely scream bloody murder about its actions. It can, however, figure out some workaround for the corporations whose lobbyists apply pressure and whose treasurers dole out the campaign contributions.
The problem is that some powerful corporations (particularly in the phone and entertainment industries) support Net Neutrality and they give law-makers lots of money as well. Besides, the overwhelming popular support for a free Internet makes opposing neutrality a potential polical liability. In any case, movement activists are already mapping their own lobbying strategies to counter any corporate offensive. It’s doubtful that the Congress will stop Net Neutrality.
The lesson here, if all goes as expected, is that popular movements at the grass-roots and national levels can win victories. This is a huge one that will keep this amazing communications system free so that it, as it has all along, can make possible more movement victories in many other, vitally important, areas.
(The disclaimer I always insert into my Net Neutrality pieces: The organization I work for, May First/People Link, is centrally involved in this struggle and I have spoken at actions around the issue scores of times and participated in meetings to develop these strategies.)
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