A few years ago, Internet users, democracy activists, and entrepreneurs got wind of a proposed law, SOPA, that would have changed the Web’s basic architecture to the benefit of a few media giants. So they organized protests for several months to oppose the law. Faced with this opposition, some senators and members of Congress who supported the Stop Online Piracy Act had a moment of sudden insight: They realized they were wrong. They had gone to Washington to help the very people who were now protesting them—the risk-takers, the job builders, the social changers. Instead of digging in or just brushing off the criticism, these policymakers learned from the protests and chose to stay on the right side of history.
Today, millions of Americans from every sector are up in arms over Federal Communications Commission Chairman Tom Wheeler’s proposal to end network neutrality and authorize cable and phone companies to discriminate among websites and charge Web giants for “fast lanes” while keeping the rest of us in a “slow lane.”
Despite the outcry, Wheeler isn’t changing sides, he’s making excuses. In the past week, the chairman has published two blog posts and given one speech (at the cable lobbying association he used to head), while two law school professors, Kevin Werbach and Phil Weiser, have taken to the Huffington Post to defend him.
Wheeler’s posts attempt to placate critics, but let’s get one thing straight: He is not backing off his plan to hand the keys to the Internet over to the cable and phone industries. The chairman told the cable industry to “put away the party hats” because he’s not actually going to kill network neutrality. But his proposal is the same plan offered by the largest cable and phone companies, which have tried to kill network neutrality for almost a decade. Since 2006, the phone and cable industries have proposed a world where they won’t “block” any websites, but they will simply create a lane for all websites and then charge anyone who wants better service for a fast lane. They have fought a nondiscrimination rule for at least eight years, using tens of millions of dollars. The tolls for the fast lane may be tied to bandwidth or a company’s revenue. Finally, the cable and phone giants want this world to have no clear rules—just vague principles about what might be “commercially reasonable,” which is an invitation for small companies to sue the giants if they’re unhappy. Since the cable and telephone companies have more FCC lawyers than most companies have employees, they will scare off most potential companies suing and then beat the rest in “FCC court.”
That’s basically what the chairman is backing—the often proposed AT&T/Verizon plan. It’s the plan that President Obama repeatedly opposed, beginning in 2006. It’s the plan that network neutrality advocates have fought against for eight years. He is emphasizing what AT&T always conceded: that carriers would be unable to “block,” that a provider will not “degrade” whatever is today’s existing service (and tomorrow’s “slow lane”), and therefore the Internet will remain an “open pathway.” But as Wheeler, Werbach, and Weiser concede, he will permit paid fast lanes. He will even permit cable and phone companies to offer fast lanes exclusively to one competitor and not to others. The only real restriction is that fast lanes can’t be offered exclusively to a company also owned by the cable or phone company. So Comcast wouldn’t be able to offer a fast lane only to NBC.com—which it owns—but could offer it only to Netflix or only to Apple, and nobody else, under the terms of his proposed rule.
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