FCC's Threat to Net Neutrality

Media democracy advocates are up-in-arms over a report that the Federal Communications Commission is set to propose rules on Internet traffic that would allow broadband providers to charge companies a premium for access to their fastest lanes.

Opponents to this rule argue that the fast lanes would be out of reach for non-profits, independent creators and small businesses, thus moving away from a democratic Internet in favor of one that favors big companies that can pay more.

DB: You said today, sir, that in implementing these changes, if they occur, the FCC is aiding and abetting the largest ISPs in their effort to destroy the open Internet. Please begin by explaining your understanding of the changes, and how they are contrary to the notion of net neutrality.

CA: Essentially, this is not net neutrality these new rules. It looks a lot more like the end of net neutrality. The problem with the FCC's approach, as it has been described in the press -- and there's been no indication from the FCC that any of those reports are inaccurate -- is that it would essentially open the door to letting the most powerful Internet service providers, the big phone and cable companies, and the biggest content companies, carve out an express lane on the Internet for their content. Where they could pay for preferential treatment, pay for priority, so that their traffic reached the audience faster than everybody else.

Essentially, they would speed up a few big guys and slow down everybody else. This is a very attractive model to the big Internet service providers but it's never been the way the Internet has worked. So this would, fundamentally, change the free and open Internet as we have known it, and, I think, furthermore the FCC's approach here, really leaves them all but unable to stop any kind of blocking or discrimination online. They are sanctioning some of it, I think they are going to be unable to really stop any bad behaviors. It's really from top to bottom a terrible approach that doesn't serve the average Internet user at all.

DB: Let's talk about that, the average Internet user. How would they lose and say a little bit more about how corporations would gain?

CA: First of all, you have to understand as I'm sure, most of your listeners know, there aren't a lot of choices when it comes to your Internet service provider. You are lucky, if you want truly high speed Internet capable of regularly streaming video, you've got at best, where you live, one or at most two choices. And if those companies decide they are going to discriminate or interfere, there's really not anywhere for the average customer to turn.

And because they don't face any competition and, therefore, don't really need to serve the needs of their customers, these companies are finding other ways to price gouge.  So you're already paying your $50, $60, $70, $80 a month for their service which is supposed to bring you the entire Internet.

And now they're saying "Well, what if we charged some of these bigger companies an extra fee to reach you over that last mile a little faster in an express lane?" And what this essentially does is it creates an incentive for them to create congestion or to create artificial scarcity. Because the only way they can get these big companies to pay up, is if the main road is always jammed.

So what you end up with is a divided Internet. A fast lane for the haves, these big content companies, Hollywood studios, maybe people like Netflicks or Google. And everybody else gets stuck on the cyber equivalent of the winding dirt road where their independent content, their start-ups and competition never gets a chance to get the same kind of foot hold. And that really fundamentally changes the way the Internet is supposed to work.

DB: The FCC has not been really doing a good job for the people. The courts have taken some action to restrain them from going down this path. Could you explain the legal battles that have been happening?

CA: Sure. It's hard to do without getting a little bit wonky, but I'll try not to delve too much into the minutiae of the telecom law. But, basically, if you go back to the last time the nation's communications laws were updated was in 1996. The word Internet only appeared maybe 11 or 12 times in a huge bill. That bill had a lot of problems. It was especially bad in terms of media consolidation and in allowing radio to become especially heavily concentrated, but when it came to Internet policy there were a number of good things in that legislation.

But, as the FCC went about implementing that legislation, the big companies started to pick away at it. And so, from that, including in 1996 and all the way until 2002, and really all the way, as long as we've had networks, telecommunication services, the phone network was treated under what's called Title 2 of the Communications Act.

And there were certain requirements that came with that, including no discrimination. And treating it as a telecommunications service is what provided the protections that prevented AT&T from dictating what kind of answering machine you could attach to your line. It's what opened things up so there was competition for long distance telephone service, where prices actually went down. It's what created an environment back in the days of dial-up where you maybe had 10 or 12 different choices for your Internet service provider. That's because the big phone companies were required to share their lines and offer them at a fair and competitive wholesale rate to other companies. Consumers benefited.

But, when Cable decided to get into the broadband business, they didn't want to follow the same rules. And they were traditionally regulated under a different part of the Communications Act, Title 6. So, they went to the FCC, this is during the Bush administration, they went to the FCC, under the chairmanship of Michael Powell, Colin Powell's son, and they said "Hey, we don't want to have these rules that apply to the telephone companies. We want you to change the way that broadband is classified under the law. So instead of broadband being a telecommunications or transmissions service, as it always had been, they were now going to be an information service. And lump in the pipes going into your house with the content riding over those pipes.

And the FCC insisted when they did this, that they could still find ways to stop that behavior. They got sued. It was a case that went all the way to the Supreme Court called Brand X.  And what the Supreme Court ultimately ruled was, not that this was a good or bad policy, but that it was up to the FCC. There were some scathing dissents including a very good one from Justice [Antonin] Scalia, but in the end that was the rule.