Nel's New Day

January 14, 2014

Either Protest or Lose the Internet

A three-judge panel of the Circuit Court of Appeals (Washington, D.C.) made a ruling today that has far-reaching effects for decades to come if it isn’t overturned. In its wisdom, the FCC has tried to protect the open net, but the judges of the appeals court struck down these regulations that would have guaranteed that all consumers have equal access to content on the Internet.

The term “net neutrality” means very little to most of us until we try to understand why our computer access is extremely slow. According to the judges, sites that pay a special fee can legally speed up access to their websites—or conversely slow down or block competing sites and services. Cable operators such as Comcast and telecommunications firms such as Verizon, which won today’s lawsuit, can pick the winners and losers. Netflix will have to pay Internet providers big bucks so that slow speed doesn’t make its films look like garbage.

The court struck down the two net neutrality rules: one prevents discrimination in favor of or against websites, and one prevents blocking specific sites. They did leave standing the requirement that carriers disclose their discrimination and blocking. As an example, any carrier can block the blog that you are reading, this one for example, for no reason as long as they tell consumers that they are blocking the site.

Fortunately, today’s ruling keeps the current net neutrality in effect until January 2018. After then, big corporations can do whatever they want unless the U.S. Supreme Court, where judges are totally technologically clueless, overturns today’s ruling. As telecommunications lawyer Marvin Ammori said, “AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason. Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all.”

Telecom companies claim that they want to provide better service to all customers. That’s always an excuse from big business. That claim has already been shown as false because regulators are fighting to keep them from degrading services for the corporations’ benefit. In 2007, Comcast was caught holding down traffic from BitTorrent, a video service competing with Comcast’s personal on-demand video. Yet even after Comcast was found guilty of violating the basic standard of Internet transmission, the FCC permitted its acquisition of NBC, giving Comcast more incentive to discriminate its transmissions.

Comcast appealed the guilty ruling. Three years after Comcast blocked several basic, legal Internet technologies, the D.C. Circuit ruled that the FCC lacked the jurisdiction to stop Comcast from its discrimination. Congress gave the FCC the power to regulate “telecommunications services” (which many believe include the Internet services provided by cable and phone companies) but not “information services” (which everyone agrees includes Twitter, Google, and other services riding on top of the Internet lines). That is, the FCC can regulate cable and phone networks but not apps and websites.

The conservatives may say that this is just the result of competition, but they’re wrong. The U.S. has no practical competition because most of the households have just one option, the local cable provider. Some might get Internet service from Verizon and AT&T, but right now they’re slower than cable companies. Others have telephone fiber services, but Verizon and AT&T have stopped these services. Don’t have it now? You won’t in the future.

The profiteering monopoly goes back to 2002 when Chair Michael Powell led the FCC to reclassify cable modem services as “information services” instead of “telecommunications services.” Congress gave the FCC the power to regulate “telecommunications services” (which many believe include the Internet services provided by cable and phone companies) but not “information services” (which everyone agrees includes Twitter, Google, and other services riding on top of the Internet lines). That is, the FCC can regulate cable and phone networks but not apps and websites. With this action, the FCC lost the ability to regulate these services. Powell got his payoff: he’s now a chief lobbyist for the cable TV industry.

In 2010, the FCC tried to resume the regulatory defense of net neutrality but failed against the fierce opposition of the cable and telecommunications industry. Any steps forward were killed in court today.

The FCC has five commissioners, but the chair sets the agenda and controls the agency through its budget and staffing. FCC chair during the 2010 ruling, Julius Genachowski, and his general counsel had promised to reclassify Internet service, but he has caved. A few months after the 2010 Comcast ruling, he cut a deal with AT&T filled with loopholes, including exemptions for the mobile method of accessing the Internet, now the dominant method. AT&T let it go because he promised not to reclassify cable and telecommunications industry that would put them under FCC regulations.

Today’s ruling is so egregious that the FCC may be forced to do something about it. Verizon, AT&T et al. will argue that network neutrality is dead and only Congress can bring it back to life. In truth, the FCC has the power to take care of the mess. Now FCC Chair Tom Wheeler, unfortunately former head lobbyist of both the cable and wireless phone industries, is in charge of fixing the mess. According to Ammori, Google, Netflix, Mozilla, eBay, IAC, and other tech companies long supporting network neutrality don’t seem to have the stomach for a fight. Those left to defend net neutrality are consumer groups and people across the country who are asking on Reddit, Facebook, and Twitter how to preserve Internet freedom.

Although the court left an opening for FCC or Congress to create net neutrality, corporations own Congress. That leaves the FCC. Wheeler needs to change his lukewarm attitude to a more compelling belief in net neutrality. A belief in the “marketplace” doesn’t work, because cable and telephone firms control that marketplace. If you want your Internet to look like your cable, where you passively receive anything that your cable company chooses to send you, then you don’t need to protest. If you want what you have now, then it’s time to write your elected representatives and the FCC. Here’s one way you can start.


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