The FCC's New Rule Protecting Net Neutrality Will Kill Net Neutrality

It seems like everyday there's something in the news to get enraged about: rancher Cliven Bundy encouraging armed militiamen to fire upon federal agents, Russia's shameless near-invasion of Ukraine, the Supreme Court's gutting of affirmative action. The list goes on. But I said early on that this blog would focus solely on the nexus between art and law and so hew to that vision I must, no matter how much I'd like to rant. Luckily (or unluckily, as the case may be), there is a news story which straddles that line close enough and deserves some attention... FCC chairman Tom Wheeler has just proposed a new net neutrality rule which would effectively kill net neutrality. [Insert finger in mouth, pull imaginary trigger]

A few months ago I wrote about the FCC's loss at the D.C. Circuit Court of Appeals on the validity of its Open Internet Rule. You can read about that here. While the court struck down the Order, I wrote that it looked like the door was left wide open for the FCC to reevaluate how it approached regulating internet service providers (ISPs) and essentially restore net neutrality. I was also feeling confident that net neutrality had a fair shot of surviving because even though there's a lot of corporate money in the fight to abolish it, there were a lot of BIG and RICH companies like Facebook, Google, Netflix, and Amazon which supported neutrality and would lobby in its favor.

Well, Wheeler took the bait and decided to have the FCC draft all new rules, which net neutrality proponents hailed. Unfortunately, they hailed too soon. The rule, which goes in front of the other FCC commissioners for a vote in May, will permit ISPs like Comcast or Time Warner to favor websites that pay more, giving them access to greater bandwidth. That means that for an extra fee, websites will be moved into a "fast lane" - their service will be sped up, pushed to users faster and with fewer hitches in service. Websites that do not pay an extra fee will be ushered to the back of the line. The new rule won't, as it currently stands, allow ISPs to slow down or throttle websites that don't pay up, nor will it allow ISPs to outright ban or block websites they don't like. But that's cold comfort for net neutrality supporters. Once you install a tiered system, that is, once you permit one website to have better access than another website for any reason whatsoever, net neutrality is over. According to neutrality supporters, that will stifle innovation while also raising prices on the websites and their customers. Everyone will have to pay more for no added benefit. And that's just what the FCC appears to be doing, despite Wheeler's promise to keep the net neutral.

For it's part, the FCC claims that, yes while it will allow speed ramping, the net will still remain neutral because ISPs would be required to reveal how they handle traffic, how much they charge companies for access to fast lanes, and whether they’ve given preferential treatment to their own content. But how will this be monitored and enforced? What powers will the FCC give itself to punish ISPs that don't play fair? Having spent some time in government myself, I can tell you that enforcement can be a bureaucratic nightmare. And with an ever-shrinking workforce, it may in fact be impossible. All the FCC is doing is giving itself more work, and leaving a half-assed regulation lying out in the open for future bureaucrats to swoop in and water down even further.

It will come as no surprise that Wheeler himself used to be a lobbyist for many of the companies his new rule will now help. That's sad, if not unexpected. When you work for the government, you take on a public trust. That means whatever your past employment, your present actions must meet certain standards of fairness and neutrality so as to serve America as a whole... not just one specific pocket of wealthy citizens. I won't say if Wheeler breached that trust, but I'm not inclined to give him the benefit of the doubt right now.

The death of net neutrality is a big problem for everyone. It will allow a small few to determine what the rest of us get to read and say. Considering the intent behind the creation of the internet - the free and equal exchange of ideas - and considering how much good the internet has done, this cannot stand, especially considering the Obama Administration's past vocal support of net neutrality. I don't know how many of you out there read this blog, but I'm hoping that you take the time to tell the FCC, your Congressional representatives, and the Obama Administration that the only acceptable rule protecting net neutrality is one that actually understands what "neutral" means. I certainly will.

Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

• Block any website they want for any reason,
• Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
• Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.