Did The FCC Get Net Neutrality Right?

As you may have heard, the FCC announced that it has set rules on net neutrality and an open Internet, which it says “will protect free expression and innovation on the Internet and promote investment in the nation’s broadband networks.”

Do you think they got it right or do there need to be changes? Let us know what you think.

Back in November, President Obama urged the FCC to reclassify Internet service under Title II of the Telecommunications Act, which would make it a utility, and the FCC has done so. Broadband is considered a telecommunications service, and providers are to be regulated.

The FCC says in its announcement:

The FCC has long been committed to protecting and promoting an Internet that nurtures freedom of speech and expression, supports innovation and commerce, and incentivizes expansion and investment by America’s broadband providers. But the agency’s attempts to implement enforceable, sustainable rules to protect the Open Internet have been twice struck down by the courts.

Today, the Commission—once and for all—enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America’s broadband networks must be fast, fair and open—principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC’s Open Internet proceeding.

Absent action by the FCC, Internet openness is at risk, as recognized by the very court that struck down the FCC’s 2010 Open Internet rules last year in Verizon v. FCC.

Broadband providers have economic incentives that “represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment,” as affirmed by the U.S. Court of Appeals for the District of Columbia. The court upheld the Commission’s finding that Internet openness drives a “virtuous cycle” in which innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge.

However, the court observed that nearly 15 years ago, the Commission constrained its ability to protect against threats to the open Internet by a regulatory classification of broadband that precluded use of statutory protections that historically ensured the openness of telephone networks. The Order finds that the nature of broadband Internet access service has not only changed since that initial classification decision, but that broadband providers have even more incentives to interfere with Internet openness today. To respond to this changed landscape, the new Open Internet Order restores the FCC’s legal authority to fully address threats to openness on today’s networks by following a template for sustainability laid out in the D.C. Circuit Opinion itself, including reclassification of broadband Internet access as a telecommunications service under Title II of the Communications Act.

With a firm legal foundation established, the Order sets three “bright-line” rules of the road for behavior known to harm the Open Internet, adopts an additional, flexible standard to future-proof Internet openness rules, and protects mobile broadband users with the full array of Open Internet rules. It does so while preserving incentives for investment and innovation by broadband providers by affording them an even more tailored version of the light-touch regulatory treatment that fostered tremendous growth in the mobile wireless industry.

The new rules apply to both fixed and mobile broadband, and prohibit broadband providers from blocking access to legal content, apps, services, or non-harmful devices. They also prohibit providers from impairing or degrading lawful internet traffic on the basis of content, apps, services, or non-harmful devices. Providers may not favor some lawful Internet traffic over other lawful Internet traffic “in exchange for consideration of any kind”. In other words, no fast lanes. ISPs are banned from prioritizing content and services of affiliates.

You can find the full announcement here (PDF).

The matter is far from settled. Republicans in Congress have reportedly proposed legislation to throw out the Title II restrictions on providers.

Here’s what people are saying on Twitter:

Naturally, plenty of companies are weighing in with their comments. Here are Verizon’s:

If you click the link for the “translated’ version, you’re taken to a news release dated for 1934 in a font that looks like this:

You get the idea.

AT&T Senior Executive Vice President Jim Cicconi said:

To be sure, one must have principles and a philosophy of government’s proper role. But a democracy cannot function when either side lapses into rigidity. Or worse, when political advantage becomes more important than the nation’s best interest.

In our little world, and in my decades of interaction with it, I’ve felt, and still feel, that the FCC has tried to stay focused on solving problems and avoided turning issues into dogma. Every chairman in my memory, including the current one, has faced political stampedes of one sort or another. Yet the agency has always tried to find a middle ground and a consensus win. They’ve understood that a win, unlike a fight, is the product of reaching out to both sides, and working in a bipartisan way to find a solution. A win is the product of compromise, thoughtful policy, and a genuine desire to find the answer to a complex set of issues.

We had such a situation – and a bipartisan win – in the 2010 net neutrality rule. Unfortunately, this was undone by a court decision, facing us with the same situation a second time. Today, an Administration and an FCC that appeared headed toward another bipartisan win on net neutrality were driven instead to a partisan fight. The 3-2 FCC vote, along party lines, for sweeping new regulation of the Internet, is a rejection of the compromise win and an embrace, however reluctant, of the political fight. It’s unfortunate that this single issue, more than any other, has over the course of ten years caused a divisive spirit to spread to an agency that has long sought unanimity on significant long term issues, and generally found it. A 5-0 decision doesn’t leave a lot of room for either side to continue the argument, while a 3-2 decision, particularly on issues of such broad scope, is an invitation to revisiting the decision, over and over and over.

Full statement here.

Sprint’s response:

Sprint has been a leader in supporting an open Internet and commends the FCC for its hard work in arriving at a thoughtful, measured approach on this important issue. We believe balanced net neutrality rules with a light regulatory touch will benefit consumers, while fostering mobile broadband competition, investment and innovation in the United States. We look forward to reviewing the FCC order and continuing to work with policymakers to ensure consumers benefit from an open Internet.

Here’s the latest from T-Mobile:

Netflix, which has been a very vocal member of the debate says:

“The net neutrality debate is about who picks winners and losers online: Internet service providers or consumers. Today, the FCC settled it: Consumers win.

Today’s order is a meaningful step towards ensuring ISPs cannot shift bad conduct upstream to where they interconnect with content providers like Netflix. Net neutrality rules are only as strong as their weakest link, and it’s incumbent on the FCC to ensure these interconnection points aren’t used to end-run the principles of an open Internet.

Given the lack of competition among broadband providers, today’s other FCC decision preventing regulations that thwart local investment in new broadband infrastructure also is an important step toward ensuring greater consumer choice. These actions kick off a new era that puts the consumer, not litigious corporate giants, at the center of competition policy.”

The ACLU says, “This is a victory for free speech, plain and simple. Americans use the internet not just to work and play, but to discuss politics and learn about the world around them. The FCC has a critical role to play in protecting citizens’ ability to see what they want and say what they want online, without interference. Title II provides the firmest possible foundation for such protections. We are still sifting through the full details of the new rules, but the main point is that the internet, the primary place where Americans exercise their right to free expression, remains open to all voices and points of view.”

Mozilla says, “This is an important victory for the world’s largest public resource, the open Web. Net neutrality is a key aspect of enabling innovation from everywhere, and especially from new players and unexpected places. Net neutrality allows citizens and consumers to access new innovations and judge the merit for themselves. It allows individual citizens to make decisions, without gate-keepers who decide which possibilities can become real. Today’s net neutrality rules help us protect this open and innovative potential of the Internet.”

The FCC received over 4 million public comments over the past year, which the commission used to help “shape” its rules.

Do you consider the FCC’s rules to be a win for the Internet? Let us know.

Image: FCC Chairman Tom Wheeler (Wikimedia Commons)