Net Neutrality: The Storm before the Lull?

By Peter Bernstein May 09, 2014

For those of us who reside in the U.S. and are of a certain age we remember a famous 1970s commercial by Chiffon Margarine which ended with matronly advice that, “It’s not nice to fool mother nature!” And, while the Internet is not quite Mother Nature, Federal Communications Commission (FCC) Chairman Tom Wheeler must be feeling these days that it is not nice to fool with the open Internet. Indeed, the storm of protests that greeted his decision to put out a Notice of Proposed Rulemaking back on April 24 to revise the Commission’s Open Internet regime in the wake of the Supreme Court Verizon v. FCC decision that struck down the current regulatory framework, has been nothing short of a class 5 hurricane.

As the May 15 date for a formal vote on opening the NPR draws close the Chairman’s challenges have started to multiply. Given the incredibly forceful statements pro and con to what is supposed to be in the NPR from a extremely diverse landscape of consumer, commercial and political interests the past few weeks it seemed hard to imagine that the winds of war could grow stronger, but they have.

Lots of parties heard from    

Let’s just say it has been a busy week for those with opinions.  A few highlights include:

  • The May 6 warning from Republican Commission Michael O’Reilly published in the widely read political site The Hill, that he fears the FCC’s use of Section 706 to patrol Internet discriminatory practices was a grab for power that was unwarranted and dangerous.
  • The May 7 letter from 129 tech companies which included the likes of Microsoft, Netflix, Facebook and Amazon, imploring the FCC to not create an Internet with tiered pricing which they believe would stifle innovation and kill competition.
  • The May 7 speech by Democratic Commissioner Jessica Rosenworcel who feels the Chairman needs to delay action on the NPR due to the “torrent of public response.”
  • The May 8 letter to the Chairman from 50 major venture capital firms that said the proposed net neutrality plan would upend the entrepreneurial climate of Silicon Valley and ultimately harm consumers.
  • The public pronouncements and a blog by the other Democrat on the five-member panel, Mignon Clyburn that she continues to oppose the idea of an Internet fast land that this is, “An opportunity for the commission “to take a fresh look and evaluate our policy in light of the many developments that have occurred over the last four years.”
  • The May 8 release from Republican Commissioner Ajit Pai that was short and sweet, I have grave concerns about the Chairman’s proposal on Internet regulation and do not  believe it should be considered at the Commission’s May meeting. Instead, I believe that the Commission should focus for the next week on getting the rules for the incentive auction right.”

What also needs to be noted is that a defiant Wheeler said on Thursday he plans on moving forward. In addition, the FCC has created a new inbox for the public to share their feelings on the subject at openinternet@fcc.gov.

So there you have the week that was. What happens in the week ahead is problematic to say the least. While the howls from various sectors about concerns over their ox being gored were a given, the fact that the Chairman is facing such strong headwinds from his fellow commissioners is “concerning” to say the least. As a politically astute vet of Washington, D.C., Wheeler cannot be pleased with the atmospherics of getting the NPR moving based on the lack of support from the two Republican commissioners and the issues his fellow Democrats have about pushing ahead.  In short, the votes do not appear to be there to proceed, albeit there does seem to be an opportunity for delay rather than killing the effort entirely.

In several previous articles I have noted that this is an instance of an irresistible force, the desire by ISPs to have the cost causers be the cost bearers for superior access to customers, and the immovable object, the desire to keep the Internet truly open, e.g., neutral and fair for everyone.

The problem is that thanks to previous FCC policies that make broadband an advanced service not subject to common carrier regulations, an authority upheld by the Supreme Court BTW, without reclassification of broadband which the industry and the Republican commissioners oppose, crafting a Solomon-like solution to this pickle—something that would likely please nobody but could provide ISPs the access and money they desire while setting up a regime that hurts other commercial and consumer interests in the process—is daunting to say the least.

At the risk of going out on a limb here, maybe the solution is to reclassify broadband, pick a speed, as basic service with all of the protections that go with common carriage while leaving ISPs the discretion to charge more for faster connections for those who would like them.

The real issue is that unlike other parts of the world, in essence the U.S. does not have a specific national broadband policy unless you consider unencumbered competition a national policy. The U.S. Congress in many ways instead of the FCC, where rules tend to be not much more than opportunity to create annuity revenue streams for members of the Federal Communications Bar Association and unhelpful regulatory lag in a rapidly changing world, really needs to step in here. Unfortunately, the prospects of them doing anything more than grandstanding to gain political advantage and fill up their campaign coffers.

When Chairman Wheeler’s proposal first surfaced like the rest of those who watch such things I wanted to wait to see the details and was looking forward to the debate on them. I happen to believe that public discourse on net neutrality would be a great thing, including as a vehicle to wake up Congress that inaction by them should not be an alternative.

We shall see if Chairman Wheeler can muster the votes to allow that conversation to take place. This storm could use a lull so that we know precisely what Wheeler has in mind, people can sharpen their criticisms, and who knows, maybe a workable compromise can be produced at the end of all this. Let’s all keep our fingers crossed since the regime is broken and there is urgency in getting it fixed.

I also want to urge you to weigh in at the FCC’s new inbox for comments. In addition, on May 22 my colleague Cark Ford, On Thursday, May 22, Carl Ford, CEO of Crossfire Media will be hosting a conference call on this very issue where your voice can be heard. By all means click on the link so you can join Carl, Scott Bradner, the former Transport Director for the Internet Engineering Task Force, who has been at the heart of making it so that Internet Transport works efficiently over any network; David Frankel, CEO of ZIPDX and an advocate for HD Voice; and Glenn Richards, Executive Director of the VON Coalition and a Partner at Pillsbury Law. Space is limited, so acting today to reserve your spot is highly recommended.




Edited by Maurice Nagle
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