Proposed Internet rules could lead to two

By Kathy E. Gill

SEATTLE, Washington - Using money to privilege convenience may be the American ethic. And it's a far cry from the egalitarianism exemplified in 'all men are created equal.' Look at the TSA and its 'precheck' program, for example.

With TSA precheck, you pay $85 and cough up your biometrics and an application for government review. If you don't have a prison record, you can probably get your own ID, a Known Traveler Number (KTN), and move to the front of the airport check-in line, an inconvenience that yields negligible risk reduction.

In a hurry but not in a car pool? Just pay a 'toll' in many states and you can drive in the HOV lane even though you're in a SOV.

But what if you wanted to send a present via FedX to your best friend, and she had to also pay FedX so that it would deliver to her expeditiously? Would we stand for that?

Giant corporations with ringers in the regulatory system are pushing similar preferential treatment for Internet traffic. And the FCC is playing along, in part because Congress is moribund.

What is the FCC proposing?

In late 2010, the Federal Communications Commission passed a set of Open Internet Rules, which it called 'just another way' to talk about 'net neutrality.'

'Net neutrality' is a simple concept: you pay for Internet service and you get the speed and volume you pay for, with no interference from the ISP. Just like telephone, electricity, gas, water or sewer. The utility doesn't slow down delivery to your home or privilege delivery to your neighbor's home. There may be preferential pricing - reduced electricity costs at midnight, for example - but if there is, everyone has access to it.

But that is not how the Internet works. Congress has blocked having Internet service providers classified as utilities or common carriers. Courts have blocked the FCC from writing rules that treat ISPs like common carriers.

Back in January, in Verizon v. FCC a U.S. Court of Appeals struck down part of the FCC Open Internet order. This before-and-after chart shows Netflix network speeds on Comcast, with the now-legal extortion leading to faster bit delivery.

In other words, the effect of the court decision is like the FedX example above: I pay for 'high speed' internet access so that I can watch Netflix and have a TV-like experience. But Netflix has to also pay my ISP to deliver its bits expeditiously, a payment in addition to its basic bandwidth costs.

Comcast is bound by network neutrality provisions put in place by the FCC after the company acquired NBC Universal, however, those provision will expire in 2018. And based on the Netflix bit-speed chart, the provisions have no teeth in the wake of the Verizon decision in January.

Thus the need for FCC action.

FCC Chairman Tom Wheeler (a revolving door ringer) plans to issue a Notice of Proposed Rule Making (NPRM) at its May 15 meeting. The FCC is rewriting the 2010 rule to get around the 2014 court decision.

Critics of the proposal released April 24 claim that the FCC is endorsing pay-to-play measures that set up an Internet fast lane. Stacey Higginbotham, writing at Gigaom, believes the FCC is cribbing from a 2011 order about cellphone data roaming, an order that survived a different Verizon court challenge. But in the process, the FCC is laying the ground for a two-tiered Internet.

Supporters claim that the FCC has no choice under current statute. Assuming the NPRM is approved next month, there will be a public comment period which is usually 30 or 90 days but has been longer with controversial measures.

We could get around these battles if Congress would man-up and legislate that Internet service providers (and all the players in-between) as well as mobile data telecoms are common carriers. Common carriers cannot discriminate - that's why AT&T has to treat Verizon phone calls the same as it treats its own.

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Our nation was founded on the concept that 'all men are created equal.'

It would be helpful if the companies controlling the pipes into our homes weren't also creating content that competes with other content providers. Why might Comcast want to degrade Netflix streaming? Because it competes with Comcast cable. This principle of fairness and equal access explains why 20th century regulators broke up Boeing and United Airlines, as well as why the U.S. Supreme Court made Paramount Pictures (et al) unbundle movie rentals and divest their movie theaters.

The Internet is one of the most powerful communication tools that man has created. It brings information to the fingertips of those isolated from mammoth libraries. Do we really want that power to inform, educate and entertain go to the highest bidder?

Sen. Bernie Sanders (I-VT) has called the FCC proposal 'misguided' and believes that 'the average American would be the big loser' if we allow corporations to control the 'free flow of ideas.' He concludes, 'We must not turn over our democracy to the highest bidder.'

I agree.

The FCC regulates all communications - radio, television, wire, satellite and cable - in the United States. Congress created the independent agency in 1934 with five commissioners (five-year terms) appointed by the president and confirmed by the Senate. Only three of the five may be members of the same political party.

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Chairman Tom Wheeler: became chairman November 4, 2013, a pinnacle in a revolving door path. He has an extensive career in cable and telecomm, both as an entrepreneur and advocate. He served as president and CEO of the Cellular Telecommunications & Internet Association (CTIA, 1992-2004) as well as president and CEO of the National Cable Television Association (NCTA, 1979-84). [back to graph]

* What is broadband, exactly? Broadband simply means 'not dialup.' And 'high speed' internet? There is no commonly accepted meaning; it differs by infrastructure. And regardless, Americans already pay more for less 'broadband' than others around the world. Where is the FCC on that little detail? Not very consumer-oriented, in my opinion.

* Kathy Gill, a faculty member at the University of Washington, is the technology policy analayst for The Moderate Voice, from which this article is reprinted.