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FCC’s Open Internet Proposal Is Premature and Half-Baked

It’s been almost a week since the FCC voted to approve Chairman Tom Wheeler’s proposed Open Internet rules and open the rule making process. Despite the strong backlash following the first previews of the proposal, not a lot changed. Wheeler still proposes allowing what has come to be called an “internet fast lane,” permitting some companies to buy faster service to consumers, which is the aspect that has come in for the greatest amount of criticism.

Although there has been plenty of good coverage and criticism of the proposal in the last six days, I wanted to read through the proposal myself. That’s not because I don’t believe the net neutrality advocates who see danger in a “fast lane” and the potential for “commercially reasonable” discrimination of internet traffic. Rather, it’s because I wanted to dig in and try to understand Wheeler’s justifications.

Once again, however, I am disappointed. I’ve read the proposal and taken some time to digest it. One of my strongest conclusions is that Wheeler’s Open Internet proposal is simply premature; even half-baked, if you will.

Now, this is not an original conclusion. Democratic Commissioner Jessica Rosenworcel and Republican Ajit Pai both publicly called for Wheeler to delay the vote on his proposal. In the end Wheeler got the three votes he needed (including his), but only along party lines, and only with last-minute negotiations.

Wheeler is really between a rock and a hard place with this proposal. The hard place is the DC Circuit Court finding in Verizon v FCC that the Commission’s 2010 Open Internet rules weren’t sufficiently defensible as long as the FCC classifies the internet as an “information service.” The rock is the political resistance he faces if he asks the Commission to reclassify the internet as a “common carrier” or telecommunications service, which would subject it to greater protections, but also anger Congressional Republicans and the nation’s ISPs, amongst many other stakeholders.

Writing at the Atlantic, Robinson Meyer does a particularly good job clearly explaining both the history and legal justifications between an “information service” and “common carrier.” Ironically enough, he points out that conservative Supreme Court Justice Antonin Scalia made a very powerful argument in favor of classifying the internet as a “telecommunications service” (common carrier) in his dissent to NTCA v FCC, wherein the Court ruled the FCC had statutory authority to consider broadband an “information service,” even if that classification was “curious.”

Nevertheless, that cat is long out of the bag, and any FCC Chairman who wants to put it back risks getting scratched up pretty badly. Yet, I do think that cat can be enticed back in, slowly and carefully. Instead, Wheeler is chasing that cat around the room, struggling to put a leash on it.

Sprinkled throughout this proposal are questions asking for public input to justify stronger net neutrality protections. For instance, the Commission asks for comment on “the impact of the openness of the Internet on free expression and civic engagement,” especially regarding political speech and “the Internet’s role as a ‘marketplace of ideas’”

This is a very good question that strikes at the heart of the American civic life and the First Amendment. But why is this question only coming up after the proposal has been drafted and voted on? More importantly, why hasn’t the Commission endeavored to research this question first? This looks like the FCC shifting that burden of research and proof onto the public.

Proposed rule makings are always full of questions for public comment. That is a critical aspect of the rule making process. However, the Commission often supplies a wealth of research to support its tentative conclusions and recommendations. While it is true that this proposal relies heavily on the first Open Internet rule making, it seems like most of Wheeler’s justifications in this one are defensive, drafted in response to the Appeals Court. Of course, it would be foolish not to take that guidance. But it also seems clear that new, fresh or reworked avenues and justifications might also be merited.

Certainly, “free expression and civic engagement” is just one possible justification that seems potentially fruitful. But it would be all the more potent if the FCC took the time to commission one or more studies to frame the relevant issues, harvest existing research and make informed recommendations. That would also give commenters something more substantive to respond to.

It really seems like we’re being railroaded with this proposal. And by “we,” I mean everybody: public interest advocates, tech companies, Congresspeople, and even ISPs. Many critics accuse Wheeler of selling out the public interest in favor of his old buddies in the cable industry, where he once served as chief lobbyist. That explanation seems too simple, obvious and pat to me. It would also be a supremely stupid thing for Wheeler to do, especially in this fashion.

Yet it’s vexing trying to suss out Wheeler’s strategy and objective. As The New York Time’s Farhad Majoo put it: “Did Regulators Break the Internet or Did They Save It? Yes.” He concludes, “the F.C.C. will absolutely positively try to protect the Internet. Unless you have a problem with it. In which case, never mind!”

Indeed, it appears that Wheeler is trying to make everyone happy, and in the process he makes nobody happy. It’s quite plausible that his attachments to the cable and broadband industries are contributing to his reluctance to reclassify internet as a telecommunications service. But given the drubbing he took on both sides of the issue in front of the House Energy and Commerce Committee Tuesday, I seriously doubt that affinity for old friends is strong enough on its own to motivate him.

In many cases compromise might seem a reasonable solution. The only problem with Wheeler’s misconceived middle path is that it’s not a trivial issue, it’s the future of the Internet.

While I tend to shy away from the dramatic proclamations that the FCC has voted to destroy the internet, I do agree that the Commissions’s proposed rules are likely to create a very real two-tier internet that threatens small providers and future innovations. The tiny rays of sunlight in this darkness come from the fact that the Commission could possibly be swayed by submitted comments, and Wheeler has explicitly put reclassifying the internet as a common carrier telecommunications service back on the table. It’s not a preferred option, by any means, but all indications are that it wasn’t there even a few weeks ago.

I do recognize that the dramatic cries about the internet’s imminent destruction are probably necessary in order to motivate public outcry, especially around a relatively arcane issue. Furthermore, these warnings aren’t misplaced. And, it will certainly require overwhelming public comment to move the Commission in the right direction. It may not alone be sufficient, but history indicates that failure to bring public pressure would harm the net neutrality effort.

Now begins that effort.

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One Response to FCC’s Open Internet Proposal Is Premature and Half-Baked

  1. Mick Woolf May 21, 2014 at 12:12 pm #

    Thank you, Paul, for a clear and well-written understanding of the situation. You have laid this out with a very moderated and realistic assessment, noting both the dramatic aspects wit the need to organize the public and the real meaning and net effects. Well done!

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