Just a few days ago, the FCC voted in favour of a pretty uniformly terrible proposal to allow internet fast lanes in the US. And throughout the 99-page proposition, FCC Chairman Tom Wheeler makes one thing painfully apparent: The FCC thinks internet users are all a bunch of goddamn idiots.
Not only do they think we won’t read…
Wheeler insists that the proposal itself is just a platform for “asking important and specific questions, and opening the discussion to all Americans.” It’s not. Instead, the fact sheet almost entirely consists of tentative conclusions. In other words these are the rules the FCC wants to adopt. That much is plain right in the text. As Derek Turner, Research Director for the Free Press, explained in an email to Gizmodo:
This is, after all, a “Notice of Proposed Rulemaking,” not a “Notice of Inquiry.” It’s a set of proposed rules with questions about those proposed rules — not a set of questions about an issue.
Sure, the proposal may ask if so-called fast lanes should be banned outright, but Wheeler is already well aware of the answer: Unless ISPs start being classified as common carriers (i.e. services that are legally required to cater to all), the FCC doesn’t have the legal authority to do so even if they wanted to. It’s like asking if we should have world peace; the answer’s obvious, and there’s absolutely nothing he can do about it.
What’s more, this is technically the second time the FCC’s asked these questions to no real end. At least this time, though, they’re following up with their very own, preemptive hell no. From paragraph 97 of the proposal:
We tentatively conclude that our proposed no-blocking rule would allow broadband providers sufficient flexibility to negotiate terms of service individually with edge providers, consistent with the court’s view that we must permit providers to “adapt . . . to individualised circumstances without having to hold themselves out to serve all comers indiscriminately on the same or standardised terms.”
In other words, even with a supposed “no-blocking rule,” the FCC has to let each ISP treat each party as it sees fit — in good faith, of course — because the FCC can’t prevent it unless they treat broadband providers as common carriers. This will almost certainly lead to the practice of effectively shoving out anyone who can’t pay up. Or what rational people might call “blocking.”
It’s a pretty little way of saying the opposite of what you mean.
…they think we can’t read…
The one thing the FCC references time and again as a means of preventing a slow lane is the ever-mysterious “minimum level of service standard.” There are several problems with this logic, which become evident once you start making sense of the FCC’s ridiculous language.
First, requiring ISPs to provide any sort of minimum standard is seen by the courts as just as restrictive as the obligations a common carrier is bound to — a big no-no. But that’s a moot point in light of problem number two: the FCC has absolutely no idea what a minimum standard would even begin to look like.
Not that the FCC would ever actually admit that. Instead, Wheeler pulls some of the most obscenely convoluted linguistic acrobatics that you will ever have the displeasure of reading. From paragraph 102 of the proposal:
One way to define a minimum level of access is as a requirement that broadband providers apply no less than a “best effort” standard to deliver traffic to end users. For any particular type of Internet traffic, best-effort delivery would represent the “typical” level of service for that type of traffic — in effect, routing traffic according to the “traditional” architecture of the Internet. Broadband providers would be free to negotiate “better than typical” delivery with edge providers, and would be prohibited (subject to reasonable network management) from delivering “worse than typical” service in the form of degradation or outright blocking.
That sure is a lot of words. But what do they actually mean?
The FCC is basically saying that, while it will make sure that ISPs do their best to give everyone a fair shot, ISPs will still be able to choose to give some edge providers (i.e. YouTube, Amazon, Imgur, and pretty much every website and app ever) a shot that’s still the best — just, you know, better. It’s a prospect that not only flies in the face of a free internet, but also logic. You can’t improve your “best efforts” for some without necessarily creating “worst efforts” for others.
It’s basically an (admittedly convoluted) dictionary definition of everything that net neutrality isn’t. As Turner told Gizmodo:
Best-efforts routing means first-in/first-out routing. If there is no congestion, there is no meaning to priority. But in order to create priority, by definition, the ISP’s networks have to be constantly congested — or artificially made to seem that way by slowing down all non-prioritised traffic.
Imagine that you’re standing in line for a ride at an amusement park. You spent all your money on a ticket, and you’ve been waiting in line for your favourite ride for hours, all the while watching as people who were able to shell out for a fast pass zip along ahead of you. No one slowed you down. No one literally put you in a slow lane. Yet there you are, and all the weasel-words in the world won’t make it OK.
…so they lied.
We’ve looked at the proposal. We’ve cleaved through the bullshit. And it all seems to boil down to one big, egregiously glossed over problem: reclassification. Without reclassifying broadband providers as common carriers, the FCC can fill all the fact sheets with all the words they want — they still won’t be able to regulate a single thing.
But to hear Tom Wheeler tell it in the days and months leading up to the proposal’s release, considering reclassification — not even reclassification itself, just considering it — was all but a guarantee. In a blog post several weeks before the proposal’s release, Wheeler wrote:
Using every power also includes using [reclassification] if necessary. If we get to a situation where arrival of the “next Google” or the “next Amazon” is being delayed or deterred, we will act as necessary using the full panoply of our authority. Just because I believe strongly that following the court’s roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use [reclassification] if warranted.
Ignoring the (glaring) oversight that identifying the “next Google” in its preliminary stages is nearly if not literally impossible — and the further problem that without a free internet, there’s nothing to see — Wheeler makes a strong case for being open to the idea of reclassification — the one thing that could actually ensure net neutrality’s protection.
And if you just glanced at the beginning of the proposal, it would seem that Wheeler’s kept that effective promise! He asks all the right questions — it’s just too bad they’re totally insincere. In paragraph 118, the proposal concludes:
In selecting a legal standard, the Commission not only wishes to avoid subjecting broadband networks to common carriage per se, it also wishes to choose a legal standard whose valid adoption renders unnecessary the adjudication of any question other than whether the adopted legal standard has been violated
Going against everything dangerous.
Because when the FCC says its doing everything it can to avoid reclassification, it means it’s doing everything it can to avoid net neutrality. And unless we do something to stop it, the internet as we know it is as good as gone.