Tom Wheeler and the Defining Question of Network Neutrality

Federal Communications Commission (FCC) Chairman Tom Wheeler caused quite a stir last week when he circulated a new Notice of Proposed Rulemaking on network neutrality. As reported by the press, the proposed rule moves away from generally prohibiting wireline broadband providers from offering “paid prioritization” (aka Internet “fast lanes”) to explicitly permitting wireline providers to offer paid prioritization subject to conditions designed to guard against anti-competitive and anti-consumer conduct.

 

Needless to say, this pleased just about nobody. Supporters of network neutrality regard paid prioritization as intrinsically anti-competitive and anti-consumer by making the Internet experience dependent on the ‘commercially reasonable’ deals of the network provider rather than the choice of the subscriber. By contrast, opponents of net neutrality oppose any limitations on what ISPs can do as “regulating the internet.” To employ a crude analogy, network neutrality supporters see Wheeler’s proposal as roughly the equivalent of teaching the rhythm method in sex ed, while opponents are outraged that Wheeler would teach anything other than pure abstinence.

 

What Wheeler has done here is to frame the defining question of network neutrality. The upcoming Notice of Proposed Rulemaking (NPRM) gives those of us who believe that paid prioritization is the opposite of net neutrality and an Open Internet the opportunity to make the case. Even more importantly, Wheeler has now confirmed that the May 15 NPRM will ask whether the FCC needs to reclassify broadband as a Title II “telecommunications service” so that the FCC will have sufficient authority to create real and effective network neutrality rules. (You can see Wheeler’s blog post setting out his proposed approach here, and his aggressive speech in the veritable heart of enemy territory — the 2104 Cable Show in Los Angeles) here.)

 

As I Tweeted in a somewhat more goofy fashion when the first stories on this began to break, this not the time to give up in despair. This is the time to stand up and make our case and fight like our future depends on it — because it does. As someone living in the DC Telecom Policy Sausage Factory, I can tell you that the strength and depth of the public outcry at the first reports that the FCC would allow Internet fast lanes shocked official Washington. If we want real network neutrality rules, which (as I wrote back in January after the most recent court ruling) first requires the FCC to reclassify broadband access  as a Title II telecommunications service, we must make our case and make our voices heard!

 

And we need to make our voice heard, not only to the FCC but also to Congress and the White House. Official Washington, which always fights the last battle, has a severe mental block against Title II. We need to make it clear to members of Congress in both parties, and to the White House, that because the D.C. Circuit has made it clear that the only way to have network neutrality is to classify broadband access as a Title II telecommunications service that is what they must do.

 

Wheeler is constrained by politics, “the art of the possible.” As we have already seen, Wheeler has gotten heat from Republicans and opponents of network neutrality for refusing to close the old docket on reclassification from 2010. Now that Wheeler has said the FCC will actively consider Title II if it cannot provide adequate protection to consumers and competition under the current Title I Information service, we can be sure that those who launched  ”shock and awe” campaign against Genachowski’s “Third Way” reclassification proposal in 2010 will do the same here even before May 15.

 

Advocacy is about making the impossible possible. We must show not merely the 3 Democrats on the FCC, but the rest of the political class in Washington, that Title II reclassification is not a “nuclear option” or “third rail” but a necessary and well supported prerequisite to a healthy Internet policy. Start by writing the FCC at the email drop they have set up specifically to take comment from the public on the net neutrality proposal before the May 15 vote: openinternet@fcc.gov (read this good piece from the Consumerist first if you are looking for more background and style points).

 

To conclude, we have not “lost” network neutrality nor has the FCC gutted it — yet. Rather, we now have the opportunity to correct the mistake the FCC made four years ago when it failed to classify broadband as a Title II service and adopt an absolute ban on ‘paid prioritization’ and other unjust and unreasonable practices. True, the current proposal reaches the wrong tentative conclusion. But it frames the right questions and gives us our chance if we step up and make our case.

 

Those fighting for net neutrality may remember a similar dark moment back in 2006, when the House Commerce Committee passed out of committee a bill that would have killed net neutrality. As I wrote then, the initial spanking pro-net neutrality forces received back then helped frame the question and the fight for all to see, paving the way for our future victory.  Let me conclude here with what I wrote then, and have written numerous times since:

 

“There’s a lesson here. YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: ‘If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?’

 

“When Ben Franklin left the Constitutional Convention someone shouted to him from the crowd “Mr. Franklin, what have you given us?” He answered “A republic — IF YOU CAN KEEP IT.” The Sausage Factory of democracy is a messy business, but it’s worth it. We can either let other folks make the sausage and eat whatever shit they put in, or we can wade in and make sure it comes out alright. We lost today’s battle. But we are turning the tide in the war. And if we keep growing and going like we have in the last week, we will win.”

 

Or, to borrow a phrase from one of my favorite movies: “Welcome back to the fight. This time our side will win.”

 

Stay tuned . . .