Legal Reality: Net Neutrality Update

Gregory A. Piccionelli

Earlier this year, in my article entitled “Warning! Net Neutrality Terminated! This Is Not A Test,“ I discussed how a recent federal court ruling has set the stage for potentially unprecedented regulatory changes that might well spell the end of the Internet as we know it. Specifically, the article focused on the ruling in Verizon vs. Federal Communications Commission that effectively ended net neutrality.

For those not familiar with the concept of net neutrality, it is the principle that all types of data, regardless of type, source or destination, should be transported and delivered evenhandedly by broadband providers. In essence, net neutrality means broadband providers, such as Verizon, Comcast and AT&T, are not supposed to play favorites by increasing or decreasing data transmission speeds for particular Internet-based services or companies. Net neutrality requires Internet service providers to treat all the traffic in their pipes the same way, no matter what amount of traffic particular users might generate. All traffic, even the traffic generated by a company like Netflix, which by some estimates is up to 30 percent of all North American traffic during peak hours, would have to be treated the same way as the online traffic generated by a typical small business.

Some critics of the FCC’s move, myself included, view the FCC’s decision as one giant step in the direction of the creation of a dangerous Internet oligarchy with unprecedented power over a resource that has become as important to our economy as oil and electric power.

But all that changed with the appellate court ruling on Jan. 14. Shortly after the court’s decision was handed down, FCC chairman Tom Wheeler said that the FCC would consider “all available options” to ensure that Internet networks “remain free and open.” While it was unclear immediately after the ruling just what that meant or what course of action the FCC will take, it was widely believed that some action in response to the court’s ruling would have to be forthcoming. As Marvin Ammori of Slate put it, “the loss was so definitive, the powers granted to cable and phone companies so outrageous, that the FCC has a live grenade in its lap.”

Well, on May 15, the FCC did take action, in a move that, in my opinion, effectively lobbed that live grenade right at the structural support for a free and open Internet. On that date, the FCC published a proposal that guts its former net neutrality regulations by allowing broadband providers to negotiate individual agreements with edge providers, such as Netflix, for priority transmission and delivery of content. While the FCC indicated that it plans to scrutinize such individual agreements on a case-by-case basis and to prohibit practices it terms not to be “commercially reasonable,” there is no indication regarding what the Commission will ultimately determine to be commercially reasonable.

But unless the FCC is somehow persuaded to jettison the idea of allowing broadband providers to enter into agreements to provide special traffic treatment to some content providers and not others, the bottom line appears to be that the new proposed FCC rules will allow content providers to pay for prioritization, and gain special access to what has come to be known as “fast lane” traffic transmission. In other words, for the first time ever, the FCC will officially turn its back on net neutrality, and will, instead, officially sanction the establishment of a stratified and very non-neutral net divided into the classes of those who can pay to have access to the fast lane and those that either cannot pay or are barred from access for other reasons. Moreover, the fact that a private company such as Comcast, Verizon or AT&T could, by fiat, completely bar fast lane access to providers of socially or politically disfavored content, should be of particular concern to both providers and recipients of such content.

Leaving aside for the moment the frightening possibilities attendant to private corporations wielding power to effectively determine what kind of content is disseminated via the Internet, many believe that the FCC’s radically changed position will, at the very least, quickly result in a new net normal where online companies will effectively be required to pay more, ultimately probably a lot more, to make sure their content is easily accessible and quickly delivered. In contrast businesses and non-profits that can’t afford to pay the toll for fast lane Information Superhighway access will almost certainly suffer from this unprecedented stratification of the Internet into privileged have and have not castes.

Some critics of the FCC’s move, myself included, view the FCC’s decision as one giant step in the direction of the creation of a dangerous Internet oligarchy with unprecedented power over a resource that has become as important to our economy as oil and electric power. According to Robert McMillan of Wired, “The problem is whether the ISPs will grow so large that they have undue control over the market for fast speeds—whether they can independently decide who gets access to what connection at what price.”

Over and over history has taught us that we must not allow crucial sectors of the economy, such as energy, transportation and communication to be controlled by a few companies and their leaders. George Mason University fellow Adam Thierer has argued that “for all the talk we hear about how the FCC’s move ... is about ‘putting consumers first’ or ‘preserving Net freedom and openness, it’s difficult to ignore the small armies of special interests who stand ready to exploit this new regulatory regime the same way they did telecom and broadcast industry regulation during decades past.”

Unfortunately, the FCC does not seem to be hearing the voice of history or the voice of famous philosopher George Satyana who accurately observed that “those who cannot remember the past are condemned to repeat it.” Many, including myself, are very concerned that the FCC’s shocking about-face regarding net neutrality will take us, in short order, from the era of net neutrality to the era of net baron brutality.

The FCC’s decision to officially sanction the dividing of the web into first class and steerage class has sparked a nearly unprecedented wave of criticism directed toward the FCC and its chairman. Unlike most commentary directed at potential FCC policymaking, the FCC’s net neutrality policy change has ignited what has now become a blistering battle involving a much broader spectrum of concerned parties than just the usual torrent of lobbyists and lawyers who normally vie for the Chairman’s attention. The public outcry has resulted in an “Occupy The FCC” protest and a corporate petition opposing the FCC plan that was signed by 150 of the world’s leading technology and communication companies, including Google, Amazon, Facebook, and Netflix.

But all that was before comedian John Oliver weighed in.

On June 1, during his HBO show “Last Week Tonight” Oliver urged his viewers to contact the FCC regarding its decision to abandon net neutrality. During the now famous broadcast Oliver called his audience to action stating “We need you to get out there, and for once in your lives, focus your indiscriminate rage in a useful direction. Seize your moment, my lovely trolls, turn on caps lock and fly, my pretties!” The overwhelming response that followed was credited with crashing the FCC’s website after providing the FCC with over 20,000 registered comments. That’s in contrast to the dozen or so that the Commission might normally receive over a weekend.

It is interesting and telling, I believe, that the comments registered with the FCC in response to Oliver’s rant were in addition to over 40,000 comments that the agency had previously received regarding its net neutrality policy change.

According to Kim Hart, spokeswoman for the FCC, about a third of the 65,000- plus comments regarding the Commission’s new policy were received after Oliver’s call to action. Not since Janet Jackson’s famous 2004 Super Bowl “wardrobe malfunction” has the FCC received so much mail.

Clearly the proposed abandonment of net neutrality has touched a national nerve. Commenting on the public response to the FCC’s new policy Rep. Anna Eshoo (D-Calif.), an ardent net neutrality supporter, said “It’s an extraordinary demonstration of how much people care about the Internet, and how it has functioned for them, and they don’t want that changed .... They’re fearful about it.” To some, the public outcry is reminiscent of the widespread online protests that greeted two congressional copyright bills, the Stop Online Piracy Act, or SOPA, and the Protect IP Act, or PIPA back in 2012.

There are signs that public’s interest in the net neutrality matter, intensified no doubt by replays of Oliver’s brilliant comedic rant on YouTube (4.1 million-plus views), are making cable and wireless companies uncomfortable with the affect the debate is having on their individual and collective public image. For example, in what seems to some to be a desperate attempt to get people to support the FCC’s new plan and improve its deteriorating corporate image.

Verizon lobbyists, according to MotherJones, are now trying to convince congressional staffers and their bosses to get on board with the FCC’s fast lane two tier Internet idea because it will supposedly help address the needs of blind, deaf, and disabled people. Interestingly, however, groups representing disabled Americans, including the National Association of the Deaf, the National Federation of the Blind, and the American Association of People with Disabilities (“AAPD”) are not supporting the FCC’s plan.

Also interesting is the comment of Mark Perriello, the president and CEO of the AAPD, who, in response to the MotherJones story, stated that the report was the “first time” he has heard of “these specific talking points,” referring to the aforementioned arguments supposedly made by Verizon lobbyists.

What’s Next?

As I indicated in my last article, the FCC could do what myself and many others consider to be the right thing by simply classifying broadband providers as telecommunication service providers. This would correct what many believe was a colossal mistake by the FCC to categorize broadband companies as providers of “information services” (like Google, Yahoo and You Tube) and not as providers of “telecommunication services” (like providers of telephone services). The reclassification would allow the FCC to use the power Congress has given the agency to regulate telecommunication services (but not information services) as “common carriers.” This would very likely place FCC reinstitution of net neutrality beyond judicial invalidation for the reasons given by the Court in Verizon vs. FCC. It would also establish once and for all the FCC’s clear authority to impose net neutrality rules on broadband providers like Comcast, Verizon and AT&T.

But reclassification of broadband companies as telecommunication providers, regardless of how simple and logical that may be, is not very likely, in my opinion, at least not anytime soon. This is because, I am sorry to say, the FCC’s proposed plan confirms my worst fears about President Obama’s selecting Tom Wheeler, a former long time lobbyist for cable and wireless companies, like Comcast, Verizon and AT&T, the very companies that want net neutrality dead, to head the FCC.

It is unfortunate that there was so little opposition to Obama’s selection of Wheeler last year. It was a move by the president that John Oliver likened in his June 1 rant to “needing a babysitter for your child and then hiring a dingo.” It looks like the president was wrong and the comedian is right. These are strange times indeed my fellow citizens.

While I do not think the FCC will soon backtrack on its new policy, I do think that we can expect both sides in this battle to continue canvassing Washington for support. As is often the case whenever a political issue has attracted substantial public attention, particularly in an election year like this one, I think we can also expect the calls on Capitol Hill for hearings on Wheeler’s proposal, which have already commenced, to grow louder. Sen. Patrick Leahy (D-Vt.), the leader of his chamber’s Judiciary Committee, has, for example, scheduled a session on the matter in July. While the FCC has not yet indicated if or when it would hold its own field hearings, an agency official has indicated that Chairman Wheeler is considering a range of options to connect with consumers in town halls and at other venues.

What You Can Do

Whether you agree with me that net neutrality and not “net telco robber baron brutality” should be the policy of the U.S., or whether you do not, I urge you in either case to register your opinion with the FCC at FCC.gov.

The stakes in this contest are high, not just for the future of the Internet and for everyone that uses it, but also potentially for the broader economy and, even for the preservation of freedom of expression in a world dependent on the Internet. Simply put, the outcome of this debate will affect you, profoundly, and you deserve to have your opinion heard.

If you do want to weigh in, please note that only comments received by the FCC by email and on the FCC website will be read and officially registered. Tweets and Facebook messages to the FCC’s social media accounts are not official means of communicating with the FCC and will not likely have much, if any, effect.

A Final Thought

At the end of John Oliver’s otherwise hysterically funny rant against the FCC he passionately stated that net neutrality advocates “should not be talking about protecting net neutrality. They shouldn’t even use that phrase. They should call it preventing cable company fuckery, because that is what it is.” I simply cannot agree more.

This article is not intended to be, nor should it be considered to be, legal advice.

Gregory A. Piccionelli is an entertainment and Internet attorney and free speech advocate. He can be reached at (818) 201-3955 or greg@piccionellisarno.com.


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