So the chairman hasn’t changed his views in face of the backlash, but he is providing some excuses for his proposal. Here are the four main justifications:
1. It’s better than nothing. The chairman and the professors are saying that we should be happy that Wheeler is guaranteeing a slow lane because without that guarantee, the carriers could block sites and there’d be no rules against it. But “better than nothing” shouldn’t cut it. We should ask instead whether we are getting the right network neutrality rule—one that would preserve all the equality, innovation, and free expression we’ve seen on the Internet. Or whether Wheeler is fulfilling President Obama’s network neutrality promise (which is no fast lanes), rather than whether his order is better than a lump of coal in a stocking.
2. The other options aren’t that great, either. The chairman and the professors argue that the only alternative to allowing paid fast lanes and slow lanes is some rule against “unreasonable discrimination.” Wheeler suggests that the “unreasonable discrimination” rule would be flimsy and could lead to abuse. But the FCC can define some things in advance as reasonable or unreasonable. It did so in the 2010 order, saying that it doubted paid fast lanes could be reasonable and that the language was so “ominous” that the court effectively treated it as a ban.
3. My heart’s in the right place. The chairman emphasizes that his proposal is intended to allow “no unreasonable discrimination.” Werbach and Weiser claim that the chairman’s plan would stop the carriers from “arbitrarily favor[ing] certain applications” and require them to offer the “same terms” to all. But a court decision in January made it clear, under the FCC’s legal own conclusions, that the commission must allow cable and phone companies to charge “similarly-situated edge providers [the court’s term for websites] completely different prices,” and can charge websites for an exclusive fast lane “while limiting all other edge providers to a more standard service,” known as a slow lane. The FCC can’t generally require the “same terms” for all.
4. It’s just too hard to do net neutrality. Wheeler has said that he wants to get new rules on the books soon and not get tied up in court—“opening an entirely new [legal] approach” just “invites delay.” So basically, he wants to move quickly—to authorize slow lanes on the Internet. That is just giving up. Plus, he will be sued anyway, either once he adopts rules or anytime the FCC ever tries to enforce them, when a startup’s business may be on the line.
Wheeler promises to adopt better rules if this scheme fails—but he’ll be long gone by the time the market and the courts reject them, and by then the Internet will be lost.
What he should realize is that his proposal isn’t just unpopular. It will be a mistake of historic proportions. The proposal would drive a knife in the heart of American innovation because startups can’t afford to pay Verizon (and then AT&T, then Cox, etc.) for fast lanes to compete with existing Web giants. They certainly can’t rely on the FCC’s vague legal “commercial reasonableness” standards as a foundation to build their businesses and raise investment. There will be an innovation freeze; most sites will be stuck in “2014 Internet,” while some sites will be able to afford the benefits of 2015, then 2016, and eventually 2060 Internet. Second, it hurts consumer choice. Up until now, we could use whatever site we wanted without those sites needing to pay for priority. If I pay Verizon for “up to” 20 Mbps, I can use it on whatever site I want to, not whatever site paid Verizon. Third, it hurts the nonprofit and religious sector. They can’t afford to pay fees. There’s a reason why several religious organizations, from the Catholic Church to the Christian Coalition and United Church of Christ, have supported network neutrality for years. Thousands of nonprofits have spoken for network neutrality. Wikipedia, run by a nonprofit, will be running that donation banner every single day—and it’ll load slowly.
That’s the network we will face, and no rhetorical mind tricks change that.
Disclosure: The author is a lawyer who has advised startups and nonprofits on net neutrality issues.
This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.