The FCC Chairman’s Lame Excuses for Slaying Net Neutrality

What's to come?
May 2 2014 7:42 AM

The FCC Chairman’s Many Excuses

Tom Wheeler tries, and fails, to justify his execution of net neutrality.

fast car, faster car.
Under the proposal, Web giants would be able to pay for a "fast lane" while the rest of us are stuck in the "slow lane."

Photo by Robertiez/Thinkstock

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.

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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.

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 SlateFuture 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.

Marvin Ammori is a Future Tense fellow at New America, a practicing lawyer, and a visiting scholar at Stanford Law School’s Center for Internet Society.

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