by Matthew L. Schafer
The FCC’s Net Neutrality Isn’t Neutral
After reading the 80 page Net Neutrality Order from the FCC, one word comes to mind: Reasonable. Not because the plan is reasonable, but because the word is used 179 times. The foundation of the plan, it is safe to say, is reasonableness. According to the FCC, there shouldn’t be unreasonable discrimination of traffic and there should be reasonable network management practices. It’s this latter that is most concerning.
The plan rests on four general net neutrality principles: transparency, no blocking, no unreasonable discrimination, and reasonable network management. Before we go forward: What’s net neutrality?
According to the ACLU net neutrality “means applying well-established ‘common carrier’ rules to the Internet in order to preserve its freedom and openness.” Ugh, but what’s a common carrier? That’s alright, we don’t need to get into that right now. As a basic rule, real net neutrality is the idea that all content on the Internet is equal. Whether you’re reading this blog or The New York Times, net neutrality says I have access to the same readers as The New York Times does, and you, the reader, can access both types of content at the same cost and speed.
On Thursday, the FCC released new rules in a supposed attempt to prevent your ISP (Comcast, Cox, AT&T, etc.) from violating the basic tenants of net neutrality. The problem is, the rules don’t go far enough, leave loopholes, and treat access to the Internet from your home and the access from your cell phone as two separate Internets. Moreover, all four “road signs” (transparency, no blocking, no unreasonable discrimination, and reasonable network management) are all subject to circumvention via “reasonable network management” and other loopholes.
Network management, which is essentially ISPs ability to slow some traffic to give preference to other traffic, “is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose.” According to the FCC, legitimate network management purposes include: “ensuring network security and integrity…, addressing traffic that is unwanted by end users…, and reducing or mitigating the effects of congestion on the network.”
Here, the concern is that ISPs will hide behind “reasonable network management” exceptions, and block or throttle traffic that competes with their own services or that they will unilaterally deem content to be unlawful, refusing to allow access. This isn’t a “could” or “maybe” or “sometime in the future, we’re worried this could happen.” Instead, there are numerous documented cases of ISPs deciding which traffic gets to your house at what speed or what applications you can access via wireless networks. (You can look here or here or here or here or here or here to see some examples.)
Splitting the ‘Net in Two
One of the worst decisions the FCC made in the new Order was splitting the Internet into two separate Internets. “There is one Internet, which should remain open for consumers and innovators alike, although it may be accessed through different technologies and services,” the Order said. “The record demonstrates the importance of freedom and openness for mobile broadband networks, and the rationales for adopting high-level open Internet rules… are for the most part as applicable to mobile broadband. However, …mobile broadband presents special considerations that suggest differences in how and
when open Internet protections should apply.”
First, vocabulary: fixed broadband is the broadband you access in your home or at a coffee shop, and the like. Mobile broadband, on the other hand, is the Internet that you carry around with you in your pocket–on your phone. The problem with giving what little protection the Order does to fixed broadband and not mobile broadband, is that mobile broadband is the Internet of tomorrow. To not protect mobile broadband leaves the Internet at the mercy of AT&T and Comcast, which already have a history of blocking content.
Now, ISPs have the regulatory green light to discriminate between which traffic they let through to your phone and which traffic they do not let through. While the Commission applied a no discrimination rule to fixed broadband, this rules actually allows discrimination. The FCC could have chosen a more stringent standard to prevent this, but it chose not to, caving to millions of corporate lobbying dollars.
“We reject proposals to define reasonable network management practices more expansively or more narrowly than stated above,” the Order said. “We agree with commenters that the Commission should not adopt the ‘narrowly or carefully tailored’ standard discussed in the Comcast Network Management Practices Order.”
Instead of the narrowly tailored approach, the FCC opted for “appropriate and tailored to achieving a legitimate network management purpose.” It went on to indicate that it plans to address issues of discrimination on a “case-by-case basis,” which no doubt will be resolved as slowly as some complaints at the FCC are being resolved now.
The purpose of this Part is to preserve the Internet as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.
A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings. (Note: The rule does not require public disclosure of competitively sensitive information or information that would compromise network security or undermine the efficacy of subject to reasonable network management practices.)
§8.5 No Blocking.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.
§8.7 No Unreasonable Discrimination.
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.
Fake Net Neutrality
This is not net neutrality. Instead, this Order creates a loophole to accompany every rule. This is, as Free Press said, “Fake Net Neutrality.” Moreover, consumers have few avenues to seek redress if they believe that their ISP is blocking traffic. An impossible burden of proof is put on John Doe, while all of the evidence sits with the ISP itself.
While the plan shows–in painful detail–why the public needs real net neutrality, it fails on the backend. Internet users will be worse off because of it. Activists are not wrong when they say that this Order has been unduly influenced by corporate lobbyists. All one has to do is read it to see that is the case. We should all be disappointed, and we should all ask for better protections. Otherwise, the Internet as we know it will no longer exist.