Few things get the American people as riled up as do threats to their Internet freedom. Anyone who squares off against the likes of Netflix is pretty much asking for it, as chairman of the FCC, Tom Wheeler, found out this past week. On April 23, The Wall Street Journal released a story containing details about new net neutrality regulations set to be made public May 15, and presented to the Senate on May 20. The latest revelations on the proposal’s content have induced a battle cry from the defenders of net neutrality, as language within may pose a serious threat to the Internet’s role as modern society’s open forum.
Net neutrality refers to the principle that Internet service providers (ISPs) should not be allowed to use tiered pricing schemes that give preferential treatment to those who pay more. Under a non-neutral scenario, we can imagine multiple “districts” of the Internet, some lightning fast and expensive, others slowed to a crawl and neglected. Broadly speaking, a threat to the neutrality of the Internet exposes society’s last truly egalitarian asset to absorption into the domain of big money and lazy oligopolists. What is now an open place of free expression and innovation could become dominated by rich, established firms, with the newcomers and stragglers languishing in the low-bandwidth slums.
Perhaps we should at least give the FCC credit for trying. In 2010, under the auspices of President Obama, then-chairman Julius Genachowski introduced blanket regulations that would prevent ISPs from treating content on their networks differently. Depending on your level of cynicism, this may have been a bluff: the FCC refused to reclassify broadband service as subject to “common carrier” telecommunications regulations and, as a result, an appeals court struck down the new rules. The opinion affirmed the authority of the FCC to make such a classification change, but held that, unless it did so, the wide regulatory net it sought to cast could not apply.
The FCC declined to appeal the decision, instead pursuing a whole new set of net neutrality regulations—the ones set to be revealed in mid-May. The Journalstory revealed changes in the language that suggest a far more permissive environment for preferential service. While the public has not yet seen the full text of the proposal, it seems that the regulatory ethos regarding price tiers will be turned on its head, from prohibiting inappropriate traffic management (the law must allow some caveats for services like web-based heart monitors) to allowing all appropriate traffic management.
This may sound like a minor change, but such a nuance can have a major impact on how regulators pursue their mission and how the courts interpret disputes: the former sets the precedent to block pricing schemes, the latter to allow. Furthermore, it seems the standard for what will get rubber-stamped or ignored by the FCC will be “commercially reasonable terms for all interested content companies.” The problem with this standard of mediation is that it is heavily in favor of the well-endowed firms with armies of lawyers ready to overwhelm regulators with reasons why their new plan is “commercially reasonable,” perhaps over a steak dinner or round of golf.
Technically speaking, reclassification of broadband service to apply common carrier rules would be an elegantly simple way to ensure the neutrality of the Internet and spare us this recurring firestorm. Politically, the move would be extremely unpopular with Republican lawmakers and their telecom patrons. This coalition argues that such a move is intolerable, as it would land broadband service in the same thicket of red tape as landline services. The Internet, however, has become an integral component of our infrastructure. It is imperative that every citizen enjoys equal access to these vital networks, and thus it is entirely appropriate to subject them to the same type of strict standards. The telecoms must be prevented from undermining equal access to the Internet for all consumers and small firms, as doing so will only stifle competition and exacerbate inequality.
The UN has declared access to the Internet a human right, and a number of European countries have passed legislation committing to this ideal. The US, on the other hand, seems to be sending a different message: that the Internet is simply another commodity to serve the profit-maximizing interests of anti-competitive oligopolists, to be carved up like the cabin of a jetliner into opulent first class and miserable coach.