The US federal government's new internet fairness policy - designed to prevent the nation's cable and DSL internet service providers from meddling with the open nature of the internet - was met with boisterous criticism on Monday night from all sides of the political spectrum.
Republicans, including FCC commissioner Robert McDowell, blasted the new rules as an interventionist over-reach by an activist federal regulator intent on asserting control over the internet.
Democrats, including Sen. Al Franken from Minnesota, along with public interest and free speech groups, slammed the rules as woefully inadequate to protect the public from the predations of an industry keen on turning the internet into a cyber-version of cable TV, with tiers and premium packages affordable by the wealthy.
There was one group, however, which seemed content with the new rules: the nation's cable and telecommunications companies, including AT&T, Comcast and Verizon. They've been making the rounds in recent weeks signaling their support for Chairman Julius Genachowski's (pictured above) compromise deal.
And of course, the new rules allow President Obama to say that he fulfilled a key campaign pledge - net neutrality - when the plan's critics say he has done nothing of the sort, and in fact only consigned the issue to more lawsuits and uncertainty.
The long-awaited FCC move comes after five years of running battles between the nation's telecoms, public interest groups and Silicon Valley firms over how best to keep the internet open to innovation.
Come Tuesday afternoon, following what will likely be a 3-2 party line vote at the FCC, the new rules of the internet road will resemble the old rules in many respects - just with less legal authority, and a massive new loophole.
For the first time, federal policy would allow for so-called reasonable "paid prioritisation". which critics argue is the first step toward cleaving out high-speed, premium fast-lanes from the "public internet". This could jeopardise internet innovation by disincentivising entrepreneurial activity on the free, or regular, internet.
The new policy appeared to cross a key hurdle Monday when Democratic FCC Commissioner Michael Copps said he would support it.
"The item we will vote on tomorrow is not the one I would have crafted," Copps said in a statement. "But I believe we have been able to make the current iteration better than what was originally circulated. If vigilantly and vigorously implemented by the Commission - and if upheld by the courts - it could represent an important milestone in the ongoing struggle to safeguard the awesome opportunity-creating power of the open Internet."
"While I cannot vote wholeheartedly to approve the item, I will not block it by voting against it," Copps said.
The Progressive Change Campaign Committee, a liberal advocacy group that supports net neutrality, instantly launched a fusillade against Copps.
"Internet users across America will have lost a hero if Commissioner Copps caves to pressure from big business and supports FCC Chairman Genachowski's fake Net Neutrality rules - rules written by AT&T, Comcast, and Verizon, the very companies the public is depending on the FCC to regulate strongly," PCCC Senior Online Campaigns Director Jason Rosenbaum said in a statement.
"There's no such thing as half a First Amendment, and there's no such thing as half of Net Neutrality. If approved, Genachowski's industry-written rules would be a historic mistake: For the first time, the FCC would give its stamp of approval to discrimination online."
The apparent denouement of this saga comes after five years of debates, lawsuits, botched regulatory actions, grassroots campaigns, and millions of dollars spent lobbying the federal government.
In 2005, then-FCC chairman Michael Powell issued a set of principles, the so-called Four Freedoms, which said that internet users had the right to use the lawful software and services they want to on the internet, access their choice of content, use whatever devices they like, and get meaningful information about how their online service plan works. The principles applied explicitly only to cable and DSL connections, and the FCC didn't say if they applied to wireless providers, such as 3G plans for mobile phones.
The FCC's new plan is basically the same as the old plan, with some key tweaks, according to a summary given to reporters Monday afternoon.
Both wireless and fixed broadband service providers will have to explain how they manage congestion on their networks. Cable and DSL companies will have to let you use the applications, online services and devices that you want to. Meanwhile, wireless companies will be prohibited from blocking websites and internet telephony services like Skype. Cable and DSL providers would be barred from "unreasonably" discriminating against various online services.
It is unclear what will constitute the FCC's standard of "unreasonableness". But if the FCC determines such "unreasonable" discrimination is occurring, the FCC says it has the power to enjoin - or stop - the behaviour, as well as issue fines or even seize assets, an FCC official said.
McDowell vigorously opposes the plan, which he says will "expand the government's reach into the Internet by attempting to regulate its inner workings," as he wrote in an Op-Ed in The Wall Street Journal.
Meanwhile, pro-net neutrality advocates lambasted the plan as "fake" net neutrality and accused Genachowski of caving to corporate interests. The order leaves open the possibility of providers creating internet fast lanes and slow lanes (for instance, charging YouTube to get to customers faster). Mobile carriers will also be free to charge users extra to watch online video services.
"The proposed rules are so riddled with loopholes that it's clear that the FCC chairman crafted them with the sole purpose of winning the endorsement of AT&T and cable lobbyists," said Tim Karr, campaign director of pro-net neutrality group Free Press.
"We're thinking of running James Cicconi as the next FCC Commissioner," Karr added. "His campaign slogan would be ‘eliminate the middle man.'"
Cicconi is AT&T's top lobbyist in Washington, DC. In the weeks leading up to announcement of the rules, AT&T lobbyists met with senior FCC staff at least six times to make their views on the issue known, according to federal disclosure documents.
Like former Chairman Powell's rules, the new FCC plan is built on a jumble of legal authorities. In the Bush years, the FCC deregulated broadband. That move declared that the Internet was not a communication service, which means the FCC has little authority over it. (Except oddly, when it comes to the rules about making the internet wiretap-friendly for the government, in which case, broadband is considered a communications service and thus carriers have to build-in wiretap equipment).
So these net neutrality rules aren't based on the FCC's authority to regulate broadband internet service, which was struck down last April in the landmark Comcast decision, which stunned an over-confident FCC.
Instead, the commission is relying on the authority of a hodge-podge of provisions cobbled together from the 1996 Telecommunications Act - authority the commission insists it can defend in federal court. One of those provisions gives the FCC authority to regulate video games.
When asked during a press briefing Monday to elaborate on the legal basis for the new rules - and whether this arrangement of twigs and twine would be challenged quickly in court, as the earlier rules were - a senior official bristled at the question. He called it loaded.
But just last spring, Genachowski himself said the FCC's own general counsel has warned that the commission was on shaky legal ground in the wake of the Comcast case which overturned the rules.
"The Commission's General Counsel and many other lawyers believe that the Comcast decision reduces sharply the Commission's ability to protect consumers and promote competition using its ‘ancillary' authority," Genachowski said, "and creates serious uncertainty about the Commission's ability, under this approach, to perform the basic oversight functions, and pursue the basic broadband-related policies, that have been long and widely thought essential and appropriate."
In the wake of the Comcast disaster, Genachowski proposed to rebuild the rules by re-classifying broadband as a "communications service," which would have given the agency clear authority to impose so-called "common carrier" rules. But that idea turned out to be political kryptonite, even if the FCC promised to apply to the internet only a small handful of the rules that regulate the phone system.
For his part, Republican commissioner McDowell is under no such illusions about what a boon the vague new rules will be for the highly-paid corporate lawyers the cable and telecommunications industry keeps on retainer like pets.
"The FCC's action will spark a billable-hours bonanza as lawyers litigate the meaning of ‘reasonable' network management for years to come," McDowell wrote. "How's that for regulatory certainty?"
Additional reporting and writing by Sam Gustin. Photo Credit: J.D. Lasica.
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