Good evening! A few days was a big day for Americans in the World Wide Web, when the FCC passed a vote to include high speed Internet as a common carrier under Title II of the Communications Act. This was the most important story of Feb. 26th, making headline news all across the country until that stupid "what color is this dress" thing came out of nowhere. Anyways, I just spent my last week writing about net neutrality for class, and I thought I should share some of my conclusions about what this net neutrality thing means for us. I won't talk much about the history, but more about what the FCC actually voted for and how we might be affected.
Firstly, I want to point out that when I say for net neutrality, I mean for Title II classification. That is what we've really been talking about the whole time, should broadband Internet be classified under Title II or should it be left as is, under Title I. I make this point because all the big companies who have been named and shamed as "against net neutrality" have all made it quite clear that they are not "against" net neutrality, they just have a different vision of what that means than the people who are typically "for" net neutrality. You can imagine what kind of political/economic blunder it would be for someone or some company to say they are against net neutrality, meaning they are against open and free Internet. C'mon, this is America we're talking about, you can't not love freedom. We just have a whole helluvalotta ideas about what freedom means, and it shows in more places than Internet policy.
Okay, so that's cleared up. What did the FCC sign when they signed the Open Internet Order? Here is an excerpt from my paper. I did some editing of the less important stuff. Warning! Lots of text incoming! (PS I removed my in-text citations to make it shorter/easier to read. I have evidence for the things I'm saying!)
"
The proposal adopted on February 26th,
2015 reaffirmed the core principles established in the 2010 Open Internet Order, that broadband
providers cannot block access to legal content, they cannot throttle (provide
slower access) legal content; and they cannot authorize paid prioritization
(provide fast lanes) to certain content over others. These three “bright line”
rules are a complement to the high transparency provision that survived the
2010 court ruling, and are now the guiding principles for an open Internet. These rules will also
apply to mobile broadband, something that the original Open Internet Order did
not include in 2010.
The FCC plans to regulate Internet
service according using a combination of so-called “light touch” Title II
regulations, and complementing it with its previous regulatory powers from
Section 706 of the 1996 Telecommunications Act.
This provides the FCC the legal authority to maintain an open Internet,
along with the flexibility to encourage investment and growth. Title II
regulation was originally conceived in the 1930s, so the FCC will use its power
to forebear, or not act upon, on over 700 regulations that do not pertain to
modern Internet technology. However, it will enforce the regulations that pertain to protections against discrimination, protecting people with disabilities, open access to utility poles to competitors, and retain the power to levy taxes for infrastructure development. All the important things that the majority of people wanted.
The statement also highlighted some key
Title II provisions the FCC will not
enforce in an effort to assuage the fears of many broadband providers. These
include: Stating that it will not establish any sort of rate regulation or
last-mile unbundling, that it does not require broadband providers to
contribute to the Universal Service Fund (even though the FCC retains the power
to do so under Title II), and that there will be no additional state and local
taxes on broadband service. The FCC grants ISPs with
significant powers to manage their network according to their technological
needs, as long as the management pertains to legitimate network interests,
rather than business interests.
Lastly, and perhaps most interestingly,
the FCC now claims the authority to address issues related to interconnections
between broadband service providers and other network services. For the first time, the FCC will now “hear
complaints and take appropriate action if it determines the interconnection
activities of ISPs are not just and reasonable”." (I'll get into interconnections a little bit later.)
Great! The FCC is going to protect us! All is well in the world! Well not quite. There are still a lot of problems facing the FCC and these rules aren't go to solve them all. So whats the problem?
"Lawsuits
The next hurdle the FCC must overcome
will be the inevitable lawsuits that broadband companies will file against
reclassification, or against provisions within the reclassification. Though
Title II classifications provide the FCC with the strongest authority to
regulate open Internet, there are still some gray areas for cable companies or
ISPs to find an incongruous portion of text that can hold up in law. The exact details of the new rules are not
known, and implementation won’t take place for several months, so detailed analis of the the legal challenges is not yet possible. But one
example stands out just in the simplified text released by the FCC, that being the
contradiction of FCC power to regulate “interconnections” versus forebearing on
rate regulation.
The more commonly used word for
interconnection is the term “peering”, where different network actors make
agreements to mutually improve access speeds between their networks. Peering is
generally viewed positively because both networks benefit from faster access,
and many, but not all, of the peering agreements are done without any money
exchanging hands. However, free peering is less common in the US
than in most places in the world, meaning that networks often
extract money from content providers, like Netflix, for improving the
interconnections’ flow of data to consumers around country. [Here is a link to a great article about peering. I used it for my research] Under
Title II, the FCC has the authority to require fair access and reasonable pricing
for interconnections, and in the FCC’s open Internet
statement, it declared that it would listen to and enforce claims that the
interconnection is not just or reasonable on a case by case basis. However in the case that the FCC finds a paid interconnection to be
unjust, it may not be able to enforce its decision to because it has already
ceded the power to regulate rates. This kind of mandate
discrepancy between different network actors may provide enough wiggle room for
lawsuits to split FCC powers under Title II.
Fickle politics
Though most of the power to regulate
broadband lay in the FCC, an independent regulatory agency, net neutrality was
highly politicized issue. As mentioned
before, approval of the Open Internet
Order split 3-2; Democrats to Republicans. FCC commissioner Ajit Pai’s oral
statement against the order (2015)
explicitly called net neutrality “Obama’s plan to regulate the Internet”.
And Obama’s open address to the public in November received considerable
backlash from Republicans in Congress.
Senator Ted Cruz, a particularly conservative leader went so far as to
Tweet that “Net Neutrality is Obamacare for the Internet; the Internet should
not function at the speed of government” Republicans
in Congress tried to block open Internet regulation through legislation but
failed to do so because it lacked any sort of Democratic support. This partisan division in Congress and within
the FCC shows that net neutrality may be here today, but there is no guarantee
it will remain 10 or 15 years in the future.
During Republic leadership in the early 2000s broadband Internet was
deregulated in an effort to spur investment, [just the opposite of now]. Net neutrality advocates should be
wary that the regulatory pendulum has swung in their favor now, but as markets
and technology evolve, the struggle to protect consumers will also evolve.
[So Leah, to answer your question, the reason it went 3-2 is because of partisanship. Not a very exciting answer. The FCC is an independent agency but there is definitely a revolving door with private interests. You vote against Title II, and when you're finished as commissioner you can come and sit on the board of Comcast. John Oliver mentions that Comcast or telecoms in general are the 2nd biggest spenders in Washington. And I know somewhere in this book by Susan Crawford about Comcast she pegs them as the biggest spender.]
Unbundling the last mile
Perhaps the most damning section of the Open Internet Order is the explicit
mention that the FCC will not
regulate last-mile unbundling, meaning that competition (or lack of
competition) between broadband service providers is not going to change any
time soon for the average consumer. Part of the FCC’s mandate is to remove
barriers to competition, but at this moment they are avoiding stepping on any
more cable company toes. Unbundling the last-mile would require monopoly cable
companies to lease the last mile sections of wire to third parties. Allowing third parties to lease cable means
they don’t have to invest in all the expensive sunken costs that attribute to a
cable’s natural monopoly position.
Supporters of last-mile unbundling believe this could lead to all sorts
of competition as witnessed in the European Union. As it currently stands the majority of US
consumers only have the choice between 1 or 2 service providers they can access
at home , but this poor selection of service
providers isn’t new to the American public, and the new net neutrality rules
don’t suggest any changes are likely to happen soon.
Even some critics of net neutrality
argued that the US wouldn’t need net neutrality guarantees against
discrimination if the broadband market had greater competition, and that net
neutrality rules are really only applying a bandage to a wound that needs
surgery. Effective last-mile unbundling will likely take
considerable collaboration with Congress and the Department of Justice (which
oversees competition law); perhaps the FCC is simply trying to jump one hurdle
at a time so as not to deal with any more lawsuits than necessary for now."
Those are the big points I took from my research on the Open Internet Order. But really the whole thing is pretty cool. Net neutrality was a huge issue over the past 14 months, and it's really amazing how much online activism played a part in getting strong regulations passed. The little guy beat out the Goliath telecom companies. The FCC certainly did their job well too. Everyone was shocked by Tom Wheeler's proposal to reclassifying Internet as Title II. When he was appointed as Chairman, everyone had him written off as a right wing deregulatory hound, but he proved everyone wrong. I would really like to read a biography about him after this decision, I want to know his thinking and reasoning for why he changed his mind. It truly was a landmark decision.
But basically the FCC has their work cut out for them if they are really going to improve the Internet situation in America. Comcast and Time Warner are huge monopolies, and it'll be very difficult to get them to cede any leeway in softening up their stranglehold on Americans. This net neutrality victory is more of a stepping stone into other Internet issues. There is still lots to do, hopefully activists are willing to shift gears and move into the next challenges.
Whew. Done for now. Next I'll write about municipal broadband, maybe.