Not Even the FCC Likes the FCC's Proposed Net Neutrality Rules

The only one who approves of the FCC's contentious newly proposed net neutrality rules is the commissioner. And he wrote them.

May 15 2014, 4:44pm
Screenshot of Chairman Tom Wheeler from the FCC's amusingly terrible livestream of today's proceedings.

The Federal Communications Commission's top officials all say the agency is committed to the open web. The only problem is, they can't agree on how, when, or even if the FCC should implement new regulations protecting net neutrality. 

Today, Chairman Tom Wheeler was joined by the FCC's four commissioners to vote on newly proposed rules for internet regulation. The group split 3-2 along party lines in favor of advancing the proposed rules—not implementing them—which now will be subject to 120 days of commentary. The end result has the potential to dramatically reshape the way the internet works, depending on whether or not the rules are able to firmly stem the rising tide of paid traffic prioritization and so-called internet fast lanes.

"We start with an obvious premise: Protecting the open internet is important for consumers and economic growth," Wheeler said. "The speed and quality of a connection a consumer purchases must be guaranteed, independent of what content he or she is viewing."

The proposed rule set advanced today essentially contains two tracks. The more ambitious of the two would reclassify broadband internet as a public utility, which has been championed by both open web advocates and the left side of the aisle. Such a reclassification would open up ISPs to far stricter regulation, including net neutrality guarantees. 

The second, more middle-of-the-road option is an attempt to revive the FCC's 2010 regulations, which the DC Court of Appeal's struck down in January in response to a Verizon lawsuit. That track will likely include provisions to allow prioritization of content—which could mean so-called "fast lanes," or other paid content delivery models—as long as such prioritization doesn't conflict with FCC rules against "commercially unreasonable" action.

This has been expected for some time. It was previously discussed by the four commissioners during a (far less contentious) panel at CES regarding AT&T's controversial "sponsored data" plan, and has been the centerpiece of debate around new regulations. The big question is what "commercially unreasonable" actually means, as critics say the vague wording leaves room for small, less-visible anticompetitive actions from ISPs. Wheeler was emphatic that such regulation would not destroy net neutrality. 

"When content provided by a firm such as Netflix reaches a consumer's internet provider, it would be commercially unreasonable to charge the content provider again for capacity for which the user has already paid," Wheeler said. Those remarks reflect a vision similar to the Netflix-Comcast deal, which wasn't the end of net neutrality, but did signal a new era of wheeling and dealing for network access.

"... the future of the internet is the future of everything."

That type of model, in which more onus is placed on ISPs to guarantee the open web, was of concern to Commissioner Mignon Clyburn, a Democrat, who opened her remarks by saying that it became fully clear to her that the open web is of major concern to many Americans when she received a call from her mother asking about protections for net neutrality. It was the first time in her career that her mother had called about regulations.

"As of January, we have no rules to prevent discrimination or blocking," she said. 

"Providers have publicly committed to keeping the status quo," Clyburn, who also supported the advancing of the proposed rules, said. "But for me the issue is whether or not we should let providers decide on their own whether or not the internet should be open, or whether we should instill rules to guarantee that, as we have for the last decade."

That the future of the internet hangs in the balance is something all five FCC officials made clear in their remarks, a point underscored by two protesters that interrupted the proceedings on two separate occasions. The question now is how to protect it. And while Wheeler was able to add a pair of supporting votes to his own, none of the FCC commissioners seemed happy with the proposed regulations.

"I support an open internet, but I would have done this differently," said Commissioner Jessica Rosenworcel, who nonetheless supported advancing the proposed rules. "Before proceeding, I would have taken time to understand the future, because the future of the internet is the future of everything."

Vine via Mashable

Like Rosenworcel, Clyburn placed blame on Wheeler for rushing forward with proposed rules, ones that have been met with popular uproar. But she also noted that the rules are just that—proposed—and that they've already changed "significantly" at the direction of her office, and that with these rules now officially proposed, the period of public commentary can begin.

Commissioner Ajit Pai, who joined fellow Republican Commissioner Michael O'Reilly in dissenting, said that the lack of public interaction in the process was most frustrating, and lamented the fact that the FCC, whose officials are not publicly elected, did not cede internet rulemaking to Congress.

"The internet is the first thing humans have built that humans don't understand," he said, paraphrasing Google's Eric Schmidt. "If true, the public should be wary of five unelected officials deciding its future."

Pai also said that the FCC had rushed into moving forward with proposed rules, and said that instead, the agency should have commissioned far more peer-reviewed economic and computer science studies into what potential effects new rules will have on the future of the web. In short, Pai suggested that the FCC isn't sure exactly what will happen if and when new rules are set in place.

O'Reilly represents the most anti-regulatory view on the panel, and called previous net neutrality regulations "defective." O'Reilly said that content prioritization is "necessary for network management," saying emphatically that "prioritization is not a bad word."

Wheeler pushed back against that viewpoint in his own remarks. "There is one internet. It must be fast, it must be robust, and it must be open," he said. "The speed and quality of a connection a consumer purchases much be guaranteed independent of what content he or she is viewing."

The contentious hearing makes it obvious that there is serious tension within the FCC regarding net neutrality regulations, and it's clear that all of the agency's top officials have their own distinct opinions on how things should shake out moving forward. But officials did agree on one thing: The next 120 days will be filled with debate, and they all encouraged Americans, who have been extremely vocal so far, to continue to voice their opinions.

"I've had hands-on experience on the value of an open internet," Wheeler said, referencing his time as a cable entrepreneur and venture capitalist.

"I will not allow the national asset of an open internet to be compromised. I've got scars from when my companies were denied access in the pre-internet days," he said. "The consideration we're beginning today is not whether the internet will be open, but how and when we will have rules in place to ensure the open internet."