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The path for an open Internet that functions without discrimination is evident: polls of the American people, the courts, federal communications law and reality all point to the Internet being treated as a common carrier, a public utility that operates without discrimination. The Chair of the FCC, Tom Wheeler, is saying he wants an open Internet without discrimination. Why isn't he taking a path that leads there?
Once it became known that Tom Wheeler was going to recommend a tiered Internet with different levels of service based on fees, the negative reaction was massive and swift. The reaction included emails, petitions and phone calls roaring into the FCC demanding net neutrality. Margaret Flowers and I began an encampment at the FCC's door one week before their Open Meeting where this proposal was going to be discussed. Within the week, the camp grew to 25--30 people. The pressure mounted and Wheeler changed course by including our view in the rule-making process but he continued to cling to his view that the Internet was not a common carrier.
The strong negative reaction to Wheeler's proposal should not be surprising as supermajorities of Americans support net neutrality. Since the court overturned net neutrality regulations in Verizon v. FCC in January, polls show very high levels of support for net neutrality: 69% support by the SF Gate poll (May 2014); 73% support,Baltimore Sun (April 2014); 84.7% support, Thundercloud (Feb. 2014); 74% support, Bay News 9 (Jan. 2014); and 81% support, CNET (Jan. 2014).
There is no question what the public wants -- they want telecoms like Comcast, Verizon and AT&T to be common carriers that bring us to the Internet without any discrimination.
As pressure mounted on Wheeler, the FCC, according to TIME Magazine, was in "chaos." TIME credited the growing encampment outside of the front door of the FCC and too many phone calls coming in for the agency to handle. Shortly after TIME's report, Wheeler came to visit us at the encampment. He made sure to have himself photographed with a sign favoring the Open Internet.
Wheeler is an easy to like guy, who spoke his position well, telling us what we wanted to hear. It was not surprising that he was a super star in two Internet business halls of fame for Cable Television and the wireless industry. When the Guardian asked me what I thought about the meeting with Wheeler I said: "He says he wants an open internet and equal access for all. That's great, but I judge a man by what he does not by what he says."
Wheeler's rhetoric got sharper, by the time he spoke at the FCC Open Meeting. He praised us for our civic action saying: "Thank you to those who felt so strongly about the issue that they camped outside. The Founding Fathers must be looking down and smiling at how the republic they created is practicing the ideals they established." In addition, his rhetoric was sounding like us, saying: "This agency supports an open Internet. There is one Internet. Not a fast Internet, not a slow Internet; one Internet." As the New Republic wrote reporting on the Open Meeting:
"Just listening to Wheeler today, you'd have thought he was the biggest Internet freedom activist in the country. 'If telecoms try to divide haves and have-nots, we'll use every power to stop it,' he said at the meeting. 'Privileging some network users in a manner that squeezes out smaller voices is unacceptable.'"
Unfortunately, as S. Derek Turner of Free Press writes -- Wheeler's rhetoric is not consistent with what he has proposed. His proposal would allow a tiered Internet based on fees paid. This is in fact not only inconsistent with what he says, but the opposite. Turner highlights portions of the proposal that demonstrate Wheeler is proposing a tiered Internet based on fees:
"We tentatively conclude that our proposed no-blocking rule would allow broadband providers sufficient flexibility to negotiate terms of service individually with edge providers, consistent with the court's view that we must permit providers to 'adapt " to individualized circumstances without having to hold themselves out to serve all comers indiscriminately on the same or standardized terms.' [paragraph 97 of the proposal]
"Today, we tentatively conclude that the Commission should adopt a revised rule that, consistent with the court's decision, may permit broadband providers to engage in individualized practices " [paragraph 111]
"". we tentatively conclude that the Commission should adopt a rule requiring broadband providers to use 'commercially reasonable' practices in the provision of broadband Internet access service " [this rule] could permit broadband providers to serve customers and carry traffic on an individually negotiated basis, 'without having to hold themselves out to serve all comers indiscriminately on the same or standardized terms " ' [paragraph 116]"
The proposed rule says it would "permit broadband providers to serve customers and carry traffic on an individually negotiated basis." Turner translates this into layman's terms: "The FCC proposal authorizes ISPs to create fast lanes and slow lanes."
Tom Wheeler is very smart, understands the law and has read the court decisions. For some reason he seems unable to comprehend the clear statements of the courts or the Federal Communications Act under which he operates.
Marvin Ammori, one of the top tech lawyers in the United States, explains in simple and clear language why the approach Wheeler is taking will result in a tiered Internet and end net neutrality. The court in Verizon v FCC ruled that if the Internet is not classified as a common carrier under Title II, then net neutrality rules do not apply. The court was pretty blunt: "We think it obvious that the Commission would violate the Communications Act were it to regulate [companies that are not subject to Title II] as common carriers."
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