And it is a mistake that must be countered by opponents, whose most important work on the issue of net neutrality begins now.
"Millions of people have put the FCC on notice. A pay-for-priority Internet is unacceptable," explained Free Press president Craig Aaron...
"Today, both Commissioners Mignon Clyburn and Jessica Rosenworcel stated that they support prohibitions on paid prioritization and other forms of unreasonable discrimination. Tom Wheeler spoke passionately about the open Internet, but his rousing rhetoric doesn't match the reality of his proposal. The only way to accomplish the chairman's goals is to reclassify Internet service providers as common carriers."The Commission says it wants to hear from the public; it will be hearing a lot more. This fight will stretch into the fall, but there's one clear answer: The American people demand real net neutrality, and the FCC must restore it."
Reclassification is clearly an option.
When a clumsy previous attempt by the FCC to establish net neutrality protections was rejected in January by the US Court of Appeals for the District of Columbia, the court did not say that the commission lacked regulatory authority -- simply that it needed a better approach. As David Sohn, general legal counsel at the Center for Democracy & Technology, has noted, the court opinion laid out "exactly how the FCC essentially tied its own hands in the case, and makes it clear that the FCC has the power to fix the problem."
"The Court upheld the FCC's general authority to issue rules aimed at spurring broadband deployment, and accepted the basic policy rationale for Internet neutrality as articulated by the FCC," explained Sohn. "The arguments in favor of Internet neutrality are as strong as ever, but prior FCC decisions on how to treat broadband have painted the agency into a corner. Those decisions are not set in stone, however, and the ball is now back in the FCC's court. The FCC should reconsider its classification of broadband Internet access and re-establish its authority to enact necessary safeguards for Internet openness."
That's the message that will be delivered by net neutrality defenders.
Recent days have seen new expressions of opposition from members of the Congressional Progressive Caucus, newspaper editorials, democracy advocates, forward-looking businesses and artists. On Tuesday, rockers like Tom Morello, the Rage Against the Machine guitarist who is now playing with Bruce Springsteen; Aerosmith's Joe Perry; Pink Floyd's Roger Waters; Pearl Jam's Eddie Vedder; and REM's Michael Stipe; along with Hip-Hop pioneer Davey D, songwriters Neko Case and Erin McKeown and the contemporary-classic innovators of the Kronos Quartet, all signed an open letter to Tom Wheeler and the Federal Communications Commission, declaring:
"The open Internet's impact on the creative community cannot be overstated. The Internet has enabled artists to connect directly with each other and with audiences. It has eliminated the barriers of geography and taken collaborations to new levels. And it has allowed people -- not corporations -- to seek out the film, music and art that moves them.
"Allowing broadband providers to control this once-open platform shifts power away from individual artists and creators and interferes with freedom of speech and expression. Unless the Commission restores strong nondiscrimination protections based on a solid legal framework, creativity, cultural commerce and free expression will suffer.
"Your proposed path would open the door to widespread discrimination online. It would give Internet service providers the green light to implement pay-for-priority schemes that would be disastrous for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. We urge you to scrap these proposed rules and instead restore the principle of online nondiscrimination by reclassifying broadband as a telecommunications service."
The artists allied with the Future of Music Coalition and the Rock the Net project are correct.
The FCC does not need to have a tortured debate about trying again to do what has failed in the past.
It can reject wrongheaded proposals and destructive "compromises" and pursue the reclassification option.
The point of beginning ought to be with an "unwavering commitment" to maintaining net neutrality. That's not a radical stance. In fact, it is the stated position of FCC member Clyburn.
"There is no doubt that preserving and maintaining a free and open Internet is fundamental to the core values of our democratic society, and I have an unwavering commitment to its independence," argues the commissioner, who has been an FCC member since 2009.
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