5 Things to Know About Obama’s Net-Neutrality Push
(Rob Pegoraro/Yahoo Tech)
President Obama posted a note to the Internet on Monday morning, admitting a mistake: When it comes to keeping the Internet open for everybody’s creativity, we’ve been doing this wrong since at least 2002. He proposed we hit the Undo button.
That note and an accompanying video on the White House’s site offer a concise definition of the “network neutrality” problem and what Obama now proposes to do about it — which would reverse his administration’s actions since 2009 and get closer to what he campaigned on in 2008.
Put simply, fast Internet access in the U.S. isn’t an equal bargain: The billions of sites and apps you might want to use can reach you through only one or, if you’re lucky, two companies that run high-speed network wires to your house.
And many of those network providers seem eager to charge the sites you like for faster service — over the connection you’re already paying for.
If you’re a Netflix, you can afford to pay that tax. If you’re an upstart competitor, you may not be able to.
And if you’re you, the broadband customer, and you don’t like that interference, well, good luck taking your business elsewhere.
None of that is new to Washington. What is novel: Obama saying we should return to regulating ISPs as a connection instead of an online destination. It’s a legal distinction that makes all the difference in the world.
1. Your ISP is technically an “information service.”
If you, like me, ignore your Internet service provider’s email and Web services and use it only as a pipeline to the Internet, then the idea that the law sees your ISP as an “information service” may seem odd. But that’s the exact course change the government embarked on in 2002.
Until then, the Federal Communications Commission treated ISPs and phone companies alike as “common carriers” that had to provide equal access to all data. This came from one of the oldest parts of telecom law, Title II of the Communications Act of 1934.
But that law also meant that phone companies had to let other companies provide digital-subscriber-line service over their wires. Cable companies didn’t like that; in 2002, the FCC obliged them by reclassifying cable as an “information service” that didn’t just provide the plain connection of a Title II service but also incorporated extra apps and features.
(That left a mismatch between cable and DSL that the FCC resolved in 2005 by saying phone-based broadband was an information service too.)
2. Big Telecom did not take “yes” for an answer.
Then the FCC tried to build net neutrality rules on other parts of telecom law, but it kept getting hauled into court and then losing.
One batch of regulations crumbled in 2010, when Comcast sued after the FCC scolded it for blocking BitTorrent file-sharing. Comcast didn’t want to resume interfering with torrents but merely wanted “to clear our name and reputation,” spokeswoman Sena Fitzmaurice told The Washington Post then.
The FCC then wrote new, looser rules, but Verizon sued to challenge its authority and won in January. An appeals court ruled that the FCC built those regulations on mud: If it wanted to treat broadband providers like common carriers, then it shouldn’t have stopped classifying them that way.
The FCC’s response was a new proposal that, absent unstated details, looked more like surrender because it would have let ISPs charge sites like Netflix for fast-lane access to their subscribers.
The idea went over poorly. Comedian John Oliver denounced it as enabling “cable company [bad stuff],” and more than 3.9 million comments hit the FCC.
And a breakdown of the first 800,959 showed that about two-thirds backed the idea of once again treating Internet providers more like phone companies and less like AOL.
3. The FCC can do this.
FCC Chairman Tom Wheeler’s “statement on Obama’s statement” Monday afternoon didn’t say he’d follow the president’s lead. But if he does, and his two Democratic colleagues vote to form a 3-2 majority of the five FCC commissioners, then they can start writing new rules. And opponents can’t stop them as easily or as quickly.
If the ISPs and Big Telecom dragged the FCC back to court, it would be unproductive — Big Telecom would be fighting precedent instead of pointing to it, said Public Knowledge Senior Vice President Harold Feld.
So will the industry turn to Congress?
In January, it won’t be divided, ending one source of legislative inaction. But while the incoming Republican majority could easily vote to handcuff the FCC, that wouldn’t have a veto-proof majority.
One tech-policy veteran half-jokingly suggested that the GOP could pass a bill strengthening the Affordable Care Act, and then staple on an amendment nuking net neutrality.
Since Sen. Ted Cruz (R-Texas) has already called net neutrality “Obamacare for the Internet,” I don’t think that will happen.
How about a full rewrite of the Telecommunications Act? Don’t clear your calendar for the bill signing.
4. ISPs can live with net neutrality rules, at least the ones they beat in court.
When Comcast took over NBC Universal in 2011, it pledged to abide by net neutrality rules that have since been tossed. Now that it seeks to buy Time Warner Cable, it keeps emphasizing that it will extend those open-Internet protections to TWC customers.
Verizon hasn’t promised not to charge for faster service, but it, too, has repeatedly said it wouldn’t block legal content online.
It’s true that Title II allows for all sorts of rules that make little sense, but the FCC can vote to set them aside — as it has for wireless voice service today.
What about a small Internet provider that doesn’t have squads of lawyers in house? Dane Jasper, CEO of the Santa Rosa, Calif.-based Sonic.Net, said he’d be fine with Title II rules: “I don’t anticipate challenges.”
Jasper — whose firm has been slowly deploying gigabit fiber over the past few years — said Title II could outright help small ISPs: The FCC could use Title II authority to require incumbent phone or cable Internet providers to let competitors pay for access to their last-mile connections to residences, the way DSL once worked.
(Note that wireless carriers wholesale their capacity to smaller firms without any regulatory prodding.)
That’s how broadband is still regulated in Europe. It is also very, very far down the corporate wish lists of Comcast, Verizon, and their ilk.
5. There’s no quick fix.
I would be stunned if the FCC voted in Title II regulation and then line-sharing. But much of what the commission might do remains unclear.
One thing I do know: None of this will make your Internet connection faster, cheaper, or more reliable anytime soon. Nor will the FCC’s quieter moves to boost competition, from encouraging TV broadcasters to sell off unused spectrum for new data services to looking into overriding state bans on cities building their own broadband services.
It’s taken a few decades for Internet access in the U.S. to congeal into a local monopoly or duopoly, and changing that won’t be a quick process. If it happens at all.
Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.
