FCC Denies Desertion of Net Neutrality

Reports that the FCC is abandoning its support of Net neutrality are incorrect, the agency’s chairman claimed Thursday.

The reports appeared just prior to the release by the FCC of a notice that it is proposing some new Open Internet rules. The old rules were rejected by a federal court in January and tossed back to the FCC for a rewrite.

There has been “a great deal of misinformation” circulating about the proposed rules, wrote FCC Chairman Tom Wheeler in a blog post.

“The Notice does not change the underlying goals of transparency, no blocking of lawful content, and no unreasonable discrimination among users established by the 2010 Rule,” he wrote.

“To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted,” Wheeler added.

‘Commercially Unreasonable’

Wheeler said there were three key elements to the proposed rules:

• That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
• That no legal content may be blocked; and
• That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

Critics of the proposed rules maintain they leave the door open for broadband providers to offer faster service for content providers willing to pay for it. That not only would destroy Net neutrality, they say, but also would result in higher prices for consumers.

Wheeler denied that.

“The allegation that it will result in anticompetitive price increases for consumers is also unfounded,” he wrote. “That is exactly what the ‘commercially unreasonable’ test will protect against: harm to competition and consumers stemming from abusive market activity.”

Comcast Roulette

However, there are those who don’t believe commercially unreasonable conduct will be much of a roadblock to broadband providers set on tiering traffic on the Internet.

“Do you think no one can drive a truck through that kind of loophole?” asked Public Knowledge Senior Vice President Harold Feld.

“The problem is, as soon as you start moving away from bright line rules and toward complicated commercial negotiated arrangements, nothing is going to be easier for anybody,” he told the E-Commerce Times.

“What people want is to be able to turn on their Internet service and have it work. What they don’t want is it to be an exciting game of roulette where Comcast has a wonderful surprise for them based on some complicated commercial negotiation,” he continued.

“This not supposed to be a happy roller coaster ride,” he added. “This is supposed to be something that’s nice and boring and dependable.”

What the FCC is proposing isn’t strong enough to protect consumers, argued Consumers Union Policy Counsel Delara Derakhshani.

“It’s still going to allow providers to give some Internet traffic better treatment,” she told the E-Commerce Times. “Deciding what’s reasonable on a case-by-case basis is not an effective way of protecting consumers before any harms occur.”

Better Broadband

While barring unreasonable commercial behavior that can harm the Internet may sound like Net neutrality, it may have pernicious consequences for consumers. “Effectively, what it does is invite litigation for the next decade about what is harm to the Internet,” said David J. Shaw, an attorney with Kirton McConkie.

“What’s clear is that the FCC is attempting yet again to implement Net neutrality — which is laudable — but it ignores the basic problem, which is supply and demand,” he told the E-Commerce Times.

“If we had better broadband in this country, we wouldn’t be talking about Net Neutality — there would be no need for prioritization of traffic,” he said.

“In order for us to get over Net neutrality, we need to have investment in true broadband that’s scalable and not held hostage to private interests,” McConkie added.

“That’s where other countries are eating our lunch when it comes to broadband,” he continued. “They’re investing in it as public infrastructure, whereas we’re investing in it as some parts public, some parts private toll road.”

Word of Caution

The proposed rules will be reviewed by the members of the commission, with a vote scheduled for May 15, according to FCC spokesperson Mark Wigfield. If approved, the rules will be released to the public for comment, and after the public comment period, final rules will be prepared for a final vote.

The cable television industry is looking forward to the public comment period.

“The cable industry supports an Open Internet and will continue to provide consumers unfettered access to legal content of their choosing,” said NCTA in a statement.

“We look forward to participating in the discussion about the best path forward to ensuring that American consumers enjoy a vibrant and open Internet experience while the marketplace encourages continued investment and innovation in our networks,” it added.

However, Verizon, which challenged the original FCC Open Internet rules rebuffed by the D.C. Circuit court, cautioned the commission: “Given the tremendous innovation and investment taking place in broadband Internet markets, the FCC should be very cautious about adopting proscriptive rules that could be unnecessary and harmful.”