Cue The Hyperbole And Hysteria: FCC Outlines Timid, Murky Plan To (Maybe) Defend Net Neutrality

from the hysterical-and-useless dept

The dysfunctional hyperbolic screaming match known as the net neutrality debate is about to be doused in napalm. The neutrality discussion has been in a holding pattern since Verizon managed to defeat the FCC’s net neutrality rules in court. Despite some press commentary, the loss wasn’t quite the killing blow many imagined, since the rules themselves quite intentionally didn’t do all that much (no protection for wireless, plenty of loopholes allowing ISPs to blame anti-competitive behavior on network security issues or congestion), and the court ruling did state the FCC still has some authority to regulate broadband ISPs.

That left the door open to a number of FCC options. Would they appeal? Would they reclassify ISPs as common carriers to solidify and broaden FCC authority? Would they give lovely speeches substituting theatrics and show ponies for policy while doing as little as possible? Would they try to draft different rules claiming new-but-still-shaky authority under Section 706 of the Telecommunications Act? Based on what I can see, it’s going to be a combination of the last two.

According to an FCC announcement today, the agency is not going to appeal the Verizon loss. Instead, they’re going to slowly contemplate new rules governing broadband carriers, using shaky Section 706 authority over net neutrality issues (which many argue don’t exist) to fight “improper blocking of and discrimination” of content on a “case by case” basis. The FCC has launched a public proceeding (pdf) and request for comment to determine the structure of the rules. A statement from FCC boss Tom Wheeler makes a numeric list of somewhat-ambiguous promises, then insists the FCC will keep ISP common carrier reclassification on the table:

“2. Keep Title II authority on the table. As the Court of Appeals noted, as long as Title II – with the ability to reclassify Internet access service as a telecommunications service – remains a part of the Communications Act, the Commission has the ability to utilize it if warranted. Accordingly, the Commission’s docket on Title II authority remains open.”

In other words, the FCC is warning ISPs that if they don’t stay on their best behavior, the FCC will take what in telecom circles is affectionately called “the nuclear option” and broaden its regulatory authority by reclassifying ISPs as common carriers. The problem is that most ISPs and analysts know the traditionally timid and politically-sensitive FCC won’t do that, but the FCC apparently hopes somebody somewhere will believe the agency has the spine for such a fight. Most consumer advocates had hoped for common carrier reclassification, arguing that anything else was just uphill legal fisticuffs.

While a good portion of the FCC’s announcement is political theater (we’ll think about doing some stuff, someday, after lobbyists and partisans water it down to the point of uselessness), there are a few marginally-promising portions, like this bit tacked on to the end:

“6. Enhance competition. The Commission will look for opportunities to enhance Internet access competition. One obvious candidate for close examination was raised in Judge Silberman’s separate opinion, namely legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities.”

Wheeler’s talking about protectionist legislation that has been written by broadband ISP lobbyists, and passed in more than <a href=”http://arstechnica.com/tech-policy/2014/02/isp-lobby-has-already-won-limits-on-public-broadband-in-20-states/”>20 states. Such bills generally prohibit a town or city from even voting to improve their own broadband infrastructure — even in cases where no private ISP will. They’re usually awful measures that strip away community rights to protect lumbering, uncompetitive duopolies, and many go so far as to even clamp down on public-private partnerships like Google Fiber. Granted “looking” at a problem isn’t the same as fixing it, but even commenting on these awful bills is more than the FCC has done historically.

As this site as long argued, the FCC could protect neutrality by focusing on reasonable, balanced policies that increase broadband competition. What we’ve gotten instead is empty lip service, with a heavy focus on “digital equality,” or shoring up broadband coverage gaps (safe ideas that play well politically and ISPs tolerate because it involves unaccountable subsidies and lazy government auditing). Competition and high prices are subjects the FCC refuses to seriously address (they even refuse to publicize broadband pricing data).

As for the FCC’s dubious authority under Section 706 under the Telecommunications Act, it should be noted that there’s a push afoot to begin “modernizing” the Act starting this year, potentially making the FCC’s shaky footing even shakier. That process is expected to take several years, during which more than a little lobbying time and money will be spent on ensuring the revision erodes regulatory authority over broadband even further. As for any new FCC’s new rules, they’ll take a long time to craft (again), and you can expect ISP lobbyists to have a better view of the rule-making procedures than consumers or objective experts. The end result will be rules that look good but are hollow and theatrical in nature.

With the neutrality debate so toxic, a better route for the FCC would be to instead focus almost entirely on improving broadband competition to drive prices down and quality up. Unfortunately, while the FCC says all the right things about valuing competition, the agency doesn’t want to rattle the slats of deep-pocketed campaign contributors like Comcast, AT&T and Verizon. As a result we get timid, murky policy that perpetuates the status quo, ultimately resulting in mediocre and expensive broadband. On the plus side, if you enjoy large numbers of people yelling at one another with few if any of them actually understanding what they’re fighting about — you’re in luck!

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Companies: verizon

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Comments on “Cue The Hyperbole And Hysteria: FCC Outlines Timid, Murky Plan To (Maybe) Defend Net Neutrality”

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9 Comments
Michael (profile) says:

Common Carrier

For any community where there is only one cable provider or one ‘twisted pair’ provider or one fiber to the house provider, said providers of those categories should be classified as common carriers. The physical plant should never be operated by a group that sells services over it. (Though said groups might be able to bid on contracts to service the physical plant).

art guerrilla (profile) says:

Re: Common Carrier

thank you…
what this highlights, is how absurd ‘The Law’ has become: when you have to twist meanings, ignore reality, and slant decisions to ENSURE they are bidness-approved, NOT for the greatest good for the greatest number…
‘The Law’ has become ALL about ensuring the primacy of korporate rule, NOT what serves us 99%…
otherwise, there would be NO WAY they would not be seen as common carriers…

Annonymous Annonymous Coward says:

Dear FCC, what competition looks like!

Fiber to 95% of existing customers, using current rights of way, controlled by public utility, funded by an administration that wants to put the country to work and fix the economy. Pay for each connection made, not miles of fiber laid, with a bonus at each milestone, 80%, 90%, 100% and a premium for prviously not connected customers. Each connection hooked up to a central station that has the ability to attach each individual hookup to a different provider. I might want one, and my kids another.

Let the competition begin

anon says:

Seriously

The US is goign to fall way behind the rest of the world, damn even the UK who are normally useless when it comes to infrastructure is getting to the stage where all people are connected to 80mb speeds , yes there are problems but at least the fiber is within a few hundred yards of all homes and businesses, or 60% of homes so far since the building of the fiber network started and continues. Within a few years everyone in the uk even those in rural areas will have the ability to connect with fiber to the premises. And for UK to achieve that is amazing.

The US is wasting a lot of money with multiple entities running fiber and until the governemetn decides to step in and do what the fcc does not have the backbone to do there will continue to be a race to the bottom for the US when it comes to broadband.

Anonymous Coward says:

I wonder if the real issue isn’t competition for providing end users fast cheap connections to the internet (as much as I’d like that), but rather that ISP’s have an unfair competitive advantage in running their own private services to compete with services on the internet. Think Netflix vs. Comcast’s own streaming service – Comcast certainly has an advantage in reaching their customers and “bundling” their ISP services with their own CDN, and I think that raises similar anti-trust concerns as Windows and Internet Explorer did.

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