Net Neutrality's Only Certainty
Today’s Federal Communications Commission meeting on net neutrality was weird. You knew how the vote was going to go, but you didn’t know what the commissioners were voting on.
And while we will soon get to see the full 332-page order on Protecting and Promoting the Open Internet that the FCC just approved, we won’t really know what it means for years to come.
This is one thing that has long driven me a bit nuts about the net-neutrality debate. People on both sides assert with remarkable certainty that if they don’t get their way, the online world as we know it will be destroyed. Yet about the only thing a semineutral observer can say with confidence is that they’re probably wrong. The rest is guesswork.
For example, the new rules. In the short run they won’t change much, because they were drawn up in order to preserve the status quo that a federal appeals court shattered with a ruling early last year. The goal is to keep broadband providers from blocking or throttling Internet content, and from charging content providers for “fast lanes” to Internet users.
This has been FCC policy since at least 2008, but the courts have now ruled twice that the laws the commission cited didn't justify those rules. The issue was that the FCC had decided in 2002 that cable broadband was an “information service” subject only to the lightest of regulations. So now the FCC is reclassifying broadband as a common carrier under Title II of the Communications Act of 1934 to give it the statutory power to tell broadband providers they can’t block, throttle or provide fast lanes.
So far, so status quo -- although the FCC also extended this authority today to wireless broadband providers, who hadn’t been subjected to all the earlier net neutrality rules. (It also decided, in a separate order, that state laws banning municipalities from building their own broadband networks violate the Telecommunications Act of 1996.) By switching over to Title II, though, the FCC also now has clear authority to do much more than that. It can, if it really wants, regulate broadband as a public utility.
Commissioner Tom Wheeler says the FCC won’t use most of that authority -- “forbearance” is a key word in the new rule. What this means, according to the press release issued by the FCC after the vote, is that the agency won't subject broadband providers to “rate regulation, tariffs and last-mile unbundling.” In their statements before today’s vote, Wheeler and the other two Democratic commissioners emphasized at varying lengths that what they were trying to do was preserve the current wonderfulness of the Internet, not blaze a radically new trail.
In their long, long dissents, the two Republican commissioners followed differing paths. Ajit Pai, a veteran communications lawyer and former FCC staffer, opted not to share his ample expertise and instead delivered a tendentious rant full of political buzzwords. So it was left to Michael O’Rielly, a veteran political aide whose name really is spelled that way, to address the substance. I couldn’t follow everything he complained about, but the overall gist was that whatever its intent, the new rule opens the door to all sorts of new and intrusive regulatory interventions that could perhaps interfere with the wonderfulness of the Internet. He also called forbearance “fauxbearance” a few times, which was fun.
O’Rielly could be right. The FCC majority may be headed, with the best of intentions, down a path that could cause big problems. My guess is that we will muddle through -- and it’s worth remembering that all the FCC is doing here is invoking powers that it has used in the past. The only thing I’m certain of, though, is that this is going to the courts next.
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