The FCC plan to kill net neutrality

Profile picture for user jbowles By Jerry Bowles May 29, 2017
Abolishing the Obama-era net neutrality rules is a priority for the Federal Communications Commission and this time public opinion may not be enough to turn the tide.

Comedian John Oliver has been the most pointed critic of the Federal Communications Commission's (FCC) attempt to rewrite the web’s net neutrality. This rant caused angry listeners to crash the FCC website.

In the cacophony of weeping and wailing and gnashing of teeth that is Washington D.C. these days, it is getting harder to pay attention to far-reaching and contentious issues being advanced that will impact millions of people around the world. None of these is more consequential or bitterly debated than the topic of net neutrality, the rules that ensure that internet users can access the online content and services of their choosing without interference from internet service providers (ISPs) like Comcast, AT&T, and Verizon.

The Obama administration’s position was that the Web is a public utility, like electricity, and an essential service to everyone in the modern economy. You pay the ISP, the ISP provides you with a reliable way to access content produced by anyone, regardless of whether they have any special business deal with the utility. The President said at the time:

“Net neutrality” has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted. We cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas.”

On May 23, the Trump Administration’s new Federal Communications Commission (FCC) voted to begin the repeal of the net neutrality rule set in place by the Obama administration in 2015, and the legal authority underlying it, Title II of the Communications Act of 1934.

The FCC new final proposal, released May 27, would kill the public utility classification and reclassify broadband Internet access service as an information service. That’s important because under the Telecommunications Act of 1996, a service can be either a “telecommunications service” that lets the subscriber choose the content they receive and send without interference from the service provider; or it can be an “information service,” like cable television, that selects what subscribers will get. “Telecommunications services” are subject to nondiscrimination requirements–like net neutrality rules. “Information services” are not.

The proposal would also eliminate the “general conduct standard,” which prohibits ISP practices that “unreasonably interfere or unreasonably disadvantage” the ability of consumers to access the online content and services of their choosing, and the ability of online content and service providers to freely access customers. On rules like blocking, throttling, paid prioritization, and transparency, the proposal takes no position except to wonder if they’re necessary at all.

Restoring Internet 'Freedom'

In true Washington-speak, this new Notice of Proposed Rulemaking (NPRM) that tilts regulation of the internet away from consumers and small businesses toward the big cable companies is called “Restoring Internet Freedom.” It has mostly Republican supporters, including senators Ted Cruz of Texas, Ron Johnson of Wisconsin and Mike Lee of Utah, who wrote in an op-ed in the Washington Post:

“We reject the idea that the federal government should control the internet. That’s why we have introduced the Restoring Internet Freedom Act, which will complement (the FCC) efforts to repeal the 2015 internet takeover by preventing the FCC from issuing any similar regulations in the future… We support an open internet. But we reject the notion that heavyhanded regulations are the way to accomplish this goal.”

Advocates for eliminating the net neutrality rules argue that the FCC overreached in 2015 and applied unnecessary regulation on the broadband market. But that argument ignores the unique lack of competition in the broadband market, according to the Electronic Frontier Foundation:

According to the FCC’s 2016 data, 51% of Americans have access to only one provider of high-speed Internet access. That means slightly more than half of the country has no other option for high-speed Internet if they don’t like something their ISP doing. Only 38 percent of Americans have access to more than one ISP. The remaining 10 percent doesn’t have access to a high-speed Internet at all.

All of this adds up to the fact that most Americans are stuck with their ISP, meaning ISPs have no incentive to respect their customers’ wishes, including when it comes to net neutrality and treating online content equally. That’s why the FCC shouldn’t roll back its open Internet rules. Tell the FCC to keep its clear, bright-line net neutrality protections in place.

The FCC has already received more than 2.6 million comments on its proposal but is signaling strongly that it doesn’t much care what commenters think. Half a million fake, identical anti-net neutrality comments were posted by bots on the FCC's proposal, using identities that appear to have been stolen from a voter registration breach. The FCC has refused to discard those comments.

The Verge quotes one senior FCC official as saying:

The comments process does not function as the equivalent of a public opinion survey or poll, and what matters if the quality of the argumentation presented, the facts that are entered into the record, the legal arguments that are placed into the record. It's not a counting procedure where you decide which side has placed more comments into the record and that side wins. That is not the way the Administrative Procedure Act works.

Which sounds a lot like “[Blank you] and the horse you rode in on.”

My take

It looks like the FCC is hell bent on killing the net neutrality rules--public opinion be damned--and it’s not at all clear that it won’t be able to do so with the help of senators whose campaigns have been well-greased by ISP lobbyists.

On the legal front, a federal appeals court on May 1 said it will not rehear a landmark case looking to overturn the Obama-era rules on net neutrality, which safeguard the principle by preventing internet service providers from abusing their gatekeeper role to block or interfere with the ability of users to access the content of their choosing. The court ruling sets up a Supreme Court showdown as soon as next spring. With a new conservative justice in residence, we don’t really know what will happen.

A fair and open internet based on the opportunity for equal access is the most important communications network ever devised precisely because it neutral. Throwing consumers to the mercy of Big Cable would be a tragedy. If cable companies are so great, why does everybody hate them.

If you like to let the FCC know what you think, you can do so here.