America Needs a Better FCC Network Neutrality Proposal

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By Steve Macek and Mitchell Szczepanczyk

When President Obama appointed Julius Genachowski chair of the Federal Communications Commission (FCC), Genachowski promised to introduce regulation that would prohibit internet service providers (ISPs) from discriminating against or blocking lawful online content.

Such “network neutrality” protections were needed because ISPs had been caught blocking their customers’ access to cost-effective telephone services like Skype and intentionally degrading the performance of peer-to-peer file sharing software like BitTorrent. Now, the FCC chair has finally unveiled his long awaited network neutrality plan, with an expected FCC vote slated for December 21. Unfortunately, the plan will do very little to protect internet users against online discrimination and censorship by ISPs.

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Network neutrality is the principle that ISPs should treat all lawful traffic over their networks equally. Using that principle of openness, countless online applications and services (Google, YouTube, Twitter, Facebook, Wikipedia, etc.) have quickly gotten online and improved the daily lives of millions of users without having to first ask for permission from ISPs. And it’s not just applications: thanks to the decentralized and nondiscriminatory nature of the internet, citizen journalists and nonprofits have been able to reach new audiences and draw public attention to stories and problems that would otherwise go ignored.

Major ISPs would like to eliminate network neutrality since they could increase their profits by prioritizing certain kinds of internet traffic. They want customers to pay more to get their websites delivered faster. But that opens the door for digital extortion, as recently occurred when Comcast arm-twisted the networking company Level 3 into paying new, exorbitant fees after Level 3 signed Netflix as a new customer. It would also make possible ISP discrimination against low-budget, grassroots web content providers like citizen journalists, bloggers and nonprofits who often post the most interesting stories and videos. These groups likely won’t have sufficient funds to sustain an internet presence for very long.

Sadly, Genachowski’s network neutrality proposal is fraught with loopholes. The proposal fails to restore FCC authority over ISPs, which all but ensures court challenges to any attempt at enforcing network neutrality. The proposal does offer nominal protections against “paid prioritization,” but critics decry these protections as weak. They point out that the proposal exempts unspecified “specialized services” from network neutrality provisions, an exception which could lead to the creation of a tiered internet. What’s more, the proposed rules don’t extend to wireless broadband networks, so that as more and more internet services go wireless, the scope of network neutrality would be sharply reduced.

Strong protection of an open internet will require a number of key changes to Genachowski’s proposed new rules. One change would be to restore FCC authority over the internet by reclassifying the internet as a “Title II” service, which would put the FCC on firmer ground for asserting its authority. A better proposal would also eliminate the “specialized services” loophole (why shouldn’t everyone benefit from network neutrality?), disallow paid prioritization (paid discrimination in other spheres of life is illegal), and extend its rules to both hardline and wireless internet services.

The major ISPs have considerable lobbying muscle, but defenders of full network neutrality have two key swing votes at the FCC — Commissioners Michael Copps and Mignon Clyburn. Both have called for provisions stronger than those embodied in Genachowski’s proposal. Genachowski’s new regulations can’t pass the FCC without the votes of Copps and Clyburn, especially since the remaining two FCC Commissioners, both Republicans, have vowed to vote against any network neutrality proposal. Hopefully, Copps and Clyburn can leverage their votes for a stronger network neutrality law that can better serve and protect the public.

Public involvement in the net neutrality fight will be a critical factor in determining whether or not the FCC can pass an improved network neutrality law. Indeed, public involvement on network neutrality — perhaps best exemplified by the Save The Internet coalition — was critical in overcoming the flood of ISP lobbying money and keeping the issue alive over the past few years when pundits dismissed it as dead or at least on life support. This final phase of the policy fight over network neutrality is no different; the future of the internet is literally in your hands.

Macek is an associate professor of speech communication at North Central College. Szczepanczyk is an organizer with Chicago Media Action.

Copyright (C) 2010 by the American Forum. 12/10


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  • bewalker

    The authors write Chairman Genachowski’s proposed net neutrality rules “fail to restore FCC authority over ISPs” when, in fact, the DC Federal Appeals Court laid this canard to rest last spring when it ruled the FCC did not possess regulatory authority whatsoever over the Internet, much less content providers and ISPs. This is what led the Chairman to attempt reclassification of the Internet to a Title II entity, essentially making it subject to telecom regulations scripted in the 1934 Communications Act. Commissioners Copps and Clyburn advocate for an Internet wherein all infrastructure is relegated to little more than “dumb pipes,” which, in essence, would serve as a significant disincentive for ISPs to invest further. In the real world, this results in lost jobs in the service of a regulatory power grab by the FCC — regulatory power they don’t currently possess. Nor should they.