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 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!