The FCC began dismantling the regulatory structure that protected common carriage on these networks. In 2002, the agency caved to the cable industry's bizarre argument: that if you were accessing the Internet over a cable line, instead of a phone line, it was somehow different and shouldn't be subject to common-carrier protections. In 2005, the FCC decided this same approach should apply to all other platforms (including the phone lines) used to access the Internet. When the public revolted at the loss of all common-carrier protections, the agency adopted a new set of openness principles.
But principles aren't the same as enforceable rules, so in 2010 the FCC said it would codify the idea of Net neutrality into law by passing the Open Internet Order. This watered-down version of Net neutrality failed even to cover wireless networks, but Verizon, a major wireless network, sued anyway, claiming the agency lacked the authority to create and enforce its rules. In January 2014, a federal court agreed with Verizon and overturned the FCC order.
But the court didn't comment on the merits of Net neutrality. Instead, it simply said if the FCC wanted to write rules that would pass legal scrutiny, it would first need to reclassify broadband as a telecommunications service. This would allow the FCC to once again treat network owners as common carriers.
All eyes on WheelerJanuary's court decision opened the door for the FCC to right the wrongs of previous administrations. If the FCC wants Net neutrality, it must reclassify broadband as a telecommunications service, which would restore common-carrier protections. All signs, unfortunately, suggest Wheeler plans to weaken, or even eliminate, Net neutrality.
Reports of the FCC's newest proposal on Net neutrality confirm that the agency is leaning toward a weak approach that stands little chance of holding up in court. The plan doesn't actually address the problem--and many say it's just a clever means of legal deferment. By proposing convoluted rules that don't stand a chance of survival, Wheeler is attempting to get the best of both worlds: He's paying lip service to the concept of Net neutrality while doing nothing to enforce it.
The uproar from those of us standing across the dividing line started as soon as the proposal leaked. The day after the FCC's plan was reported in the press, The New York Times editorialized:
In this new world, smaller content providers and startups that could not pay for preferential treatment might not be able to compete because their delivery speeds would be much slower. And consumers would have to pay more because any company that agrees to strike deals with phone and cable companies would undoubtedly pass on those costs to their users.
Yet this isn't just about the big video and content companies. As Stanford Law School professor Barbara van Schewick explains, the FCC's proposal would seriously disadvantage those lacking the resources of an already established corporate entity.
"Today, individuals and nonprofits can put their content online at low cost, and when it travels across the network, that content receives the same service from the network as commercial content," writes van Schewick. "By contrast, access fees would create two classes of speakers--those who can pay to receive better treatment (e.g., large, established companies or wealthy individuals) and those who cannot afford to do so--often individuals and groups with unpopular or new viewpoints, like activists and artists."
Net neutrality activists expected the FCC to release full details of its proposal at its May 15 meeting and began mobilizing in April, calling on the FCC and Congress to fully ensure a free Internet. Once the FCC releases its official proposal, the floodgates will open for public comment. If the initial reaction is any indicator, millions of people will weigh in.
The five FCC commissioners have the power to protect or destroy the Internet as we know it. Unless everyone on this side of the line speaks up, Comcast and Verizon will get the last word. To save the Internet, Americans have to speak up now.
Candace Clement wrote this article for The Power of Story, the Summer 2014 issue of YES! Magazine. Candace is Field Director for Free Press, a national, nonpartisan organization fighting for your right to connect and communicate. She sometimes remembers to tweet from @candacejeanne about media, technology, comedy and music.
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