Good news. The US president, Barack Obama, is finally standing up for the internet, and asking the FCC to classify it as a public utility. In other words, he’s asking the agency not to allow destructive things like fast lanes (a.k.a. paid prioritisation) or throttling. It’s a great day!
At least, today’s news is a great step in the right direction.
It’s unclear so far exactly how the FCC will react to the president’s splashy statements about net neutrality. Chairman Tom Wheeler and his cronies could simply decide to ignore Obama. But when the Commander-in-Chief says something like this, you’d hope the government agencies he’s sort of* in charge of will listen:
More than any other invention of our time, the Internet has unlocked possibilities we could just barely imagine a generation ago. And here’s a big reason we’ve seen such incredible growth and innovation: Most Internet providers have treated Internet traffic equally. That’s a principle known as “net neutrality” — and it says that an entrepreneur’s fledgling company should have the same chance to succeed as established corporations, and that access to a high school student’s blog shouldn’t be unfairly slowed down to make way for advertisers with more money.
Inspirational, right? Obama’s good at that. I said “sort of” above because, as Obama is careful to point out in his statement: “The FCC is an independent agency, and ultimately this decision is theirs alone.” So they could just ignore him. But let’s get into the details before we really consider that option.
So Obama’s asked the FCC to reclassify the internet as a public utility, like electricity or water. This means a lot of things. Suffice it to say that the internet gets a better square on the Monopoly board. Instead of just being a regular piece of real estate that can be bought or sold or modified or destroyed, the internet would enjoy a number of regulatory protections if it were classified under Title II of the Telecommunications Act.
The White House points out in a blog post about Obama’s statement that the reclassification would represent a “basic acknowledgement of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies.” That sounds about right. The internet was designed to be a free and open tool for communications.
So Obama’s presenting a four point plan. You can read his full explanation of each point in the full statement below, but here are the important, pretty self-explanatory bullet points:
- No blocking.
- No throttling.
- Increased transparency.
- No paid prioritization.
No block and no throttling are obvious. Increased transparency is vague, but we’ll come back to that in a second. Meanwhile, you’ve heard a lot about paid prioritisation (fast lanes) from the big fight over the summer, when the FCC invited the public to comment on its pretty shitty rules. As we all know, lots of people — over 4 million to be exact — did just that, breaking pretty much every record the FCC had for public involvement in its regulations. So the president agreeing with the public is a terrific thing! But, again, it does not mean that this solves the problem of protecting net neutrality for good.
What It Means
Now, let’s get into the dirty details, because that’s where this policy shift will either make or break the future of the internet. And there is most definitely a big asterisk on Obama’s plan, an exception that some think spoils the whole thing.
The specific mandates that Obama lays out in his statement are exactly that: specific. It’s important that he specifically forbids blocking, throttling and paid prioritisation, because pretty much everybody agrees that these are bad for the internet — everybody except, maybe, the ISPs like Verizon and Comcast who stand to profit from these practices. The FCC got into trouble with the American public for not specifically forbidding certain practices, namely paid prioritization.
The more general aspects of the Obama’s plan raise a few questions. The president is very clear when he explains what being classified under the Title II of the Telecommunications Act of 1934 means:
For almost a century, our law has recognised that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business. That is why a phone call from a customer of one phone company can reliably reach a customer of a different one, and why you will not be penalised solely for calling someone who is using another provider.
Almost a century! The Telecommunications Act is an old law, but it’s a good one. Its provisions attempt to guarantee that consumers don’t get screwed on services that are integral to daily life. In 1934, that meant telephones. Now, Obama’s saying that it should also mean broadband internet. In his own words, this is just “common sense”.
But there’s a caveat here — that asterisk I mentioned at the top of this post. Right after his “common sense” remark, Obama says this:
So the time has come for the FCC to recognise that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do. To do that, I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.
“Forbearing” is the key word there. The legal term is forbearance, which literally means “the action of refraining from exercising a legal right”. In this context, forbearance means that some parts of the Telecommunications Act would not apply to the regulation of broadband internet, namely “rate regulation and other provisions less relevant to broadband services.” That line reads like a hat tip to ISPs, a signal that the government is giving them a little bit of wiggle room — or a lot. It’s kind of unclear.
It’s long been argued that forbearance would be the key to preserving net neutrality. After all, until the government decides that it will become an ISP and provide Americans with internet access, broadband is a business. To preserve the free and open aspects of the internet, some compromises will have to be made for business interests.
At face value, the fact that Obama is offering ISPs forbearance on an undetermined number of aspects of Title II sounds like a trick. It’s one of those devil-you-don’t-know situations. Sure, he forbids bad things like fast lanes and throttling, but he’s also saying that ISPs will get off the hook for an undisclosed number of regulations. Rate regulation is one that he does name. This means that regulators won’t be able to tell ISPs how much they can charge customers. Obviously, ISPs like this idea. But what else won’t regulators be able to do?
So keep an eye on this forbearance issue. It might become pretty problematic for the average consumer. Then again, it might be the trade-off we have to make so that the FCC — and the companies that spend millions so that the agency respects their wishes — actually approves an acceptable set of net neutrality rules.
Will It Work?
Once again, Obama’s statement about net neutrality is great news. Great news always has its caveats, but look at it this way. About an hour after the White House released the statement, Tim Wu tweeted:
Tim Wu is the Columbia Law School professor who invented the term “net neutrality.” So if he likes Obama’s policy, today is a terrific day for the internet. And it actually sounds like he loves the policy.
Keep this in mind when you wonder if it will work. Will the FCC actually write new rules that conform to the president’s wishes? We don’t know. We can’t know until they do or they don’t!
Think of it this way, though. The FCC is not the American people’s favourite agency right now. More than one individual commissioner has even admitted that the existing rules are bad. Meanwhile, the experts who understand how the internet works better than the FCC does say that Obama’s plan is “100% on target.”
It’s the FCC’s job to listen to experts and do what’s best for the American people. Now would be a good time for the FCC to do its job.
Read Obama’s full statement below:
An open Internet is essential to the American economy, and increasingly to our very way of life. By lowering the cost of launching a new idea, igniting new political movements, and bringing communities closer together, it has been one of the most significant democratizing influences the world has ever known.
“Net neutrality” has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted. We cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas. That is why today, I am asking the Federal Communications Commission (FCC) to answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality.
When I was a candidate for this office, I made clear my commitment to a free and open Internet, and my commitment remains as strong as ever. Four years ago, the FCC tried to implement rules that would protect net neutrality with little to no impact on the telecommunications companies that make important investments in our economy. After the rules were challenged, the court reviewing the rules agreed with the FCC that net neutrality was essential for preserving an environment that encourages new investment in the network, new online services and content, and everything else that makes up the Internet as we now know it. Unfortunately, the court ultimately struck down the rules — not because it disagreed with the need to protect net neutrality, but because it believed the FCC had taken the wrong legal approach.
The FCC is an independent agency, and ultimately this decision is theirs alone. I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online. The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include:
No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business.
No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others — through a process often called “throttling” — based on the type of service or your ISP’s preferences.
Increased transparency. The connection between consumers and ISPs — the so-called “last mile” — is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.
No paid prioritization. Simply put: No service should be stuck in a “slow lane” because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet’s growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.
If carefully designed, these rules should not create any undue burden for ISPs, and can have clear, monitored exceptions for reasonable network management and for specialised services such as dedicated, mission-critical networks serving a hospital. But combined, these rules mean everything for preserving the Internet’s openness.
The rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device. I believe the FCC should make these rules fully applicable to mobile broadband as well, while recognising the special challenges that come with managing wireless networks.
To be current, these rules must also build on the lessons of the past. For almost a century, our law has recognised that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business. That is why a phone call from a customer of one phone company can reliably reach a customer of a different one, and why you will not be penalised solely for calling someone who is using another provider. It is common sense that the same philosophy should guide any service that is based on the transmission of information — whether a phone call, or a packet of data.
So the time has come for the FCC to recognise that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do. To do that, I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services. This is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies.
Investment in wired and wireless networks has supported jobs and made America the center of a vibrant ecosystem of digital devices, apps, and platforms that fuel growth and expand opportunity. Importantly, network investment remained strong under the previous net neutrality regime, before it was struck down by the court; in fact, the court agreed that protecting net neutrality helps foster more investment and innovation. If the FCC appropriately forbears from the Title II regulations that are not needed to implement the principles above — principles that most ISPs have followed for years — it will help ensure new rules are consistent with incentives for further investment in the infrastructure of the Internet.
The Internet has been one of the greatest gifts our economy — and our society — has ever known. The FCC was chartered to promote competition, innovation, and investment in our networks. In service of that mission, there is no higher calling than protecting an open, accessible, and free Internet. I thank the Commissioners for having served this cause with distinction and integrity, and I respectfully ask them to adopt the policies I have outlined here, to preserve this technology’s promise for today, and future generations to come.