Net neutrality: More uncertainty for the industry. Next steps?


I wish I had an extra day in my week to scan all media for reports on the recent Net Neutrality order from the US Court of Appeals. I guess the best I can say about it right now is that people are paying attention to broadband and geeky tech issues now in a way they weren’t a few years ago. I realized that when I stumbled onto an interview with Susan Crawford and Scott Cleland on a program called The Take Away on my drive home from the western edge of Minnesota. (That interview is worth 13 minutes of your time. Crawford and Cleland have very different opinions on the issue!)

Starting at the beginning – well the beginning of the end of chapter two of Net Neutrality. Earlier this week, the Court of Appeals ruled that the FCC can’t enforce Net Neutrality…

That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.

In short – the FCC decided long ago that they wouldn’t classify broadband providers as common carriers; telephone companies had been common carriers. Telephone companies were/are heavily regulated. Losing the common carrier status means the FCC has lost the ability/right to regulate with net neutrality rules.

According to NPR, the Court did provide that broadband providers have to let customers know about filter/prioritized traffic…

Judges did, however, preserve the disclosure requirements that say while Verizon and other carriers can make some traffic run faster or block services, they have to tell subscribers they’re doing it.

NPR goes on to paint a picture of what this could mean for customers…

What you see depends on where you sit. Net neutrality advocates fear that if the federal government stops enforcing rules to keep the pipelines free and open, then certain companies will be able to get greater access to Internet users. That, they say, creates a system of haves and have-nots — the richest companies could get access to a wider swath of Internet users, for example, and that could prevent the next Google from getting off the ground. Judge David Tatel, who was part of the three-judge panel, said that striking down net neutrality could have negative effects on consumers.

“The commission has adequately supported and explained its conclusion that absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment,” he said, adding that broadband companies have “powerful incentives” to charge for prioritized access or to exclude services that competed with their own offerings.

Public Knowledge goes on too..

This doesn’t make the FCC entirely helpless. But it does mean that the best the FCC can hope for, absent reclassifying broadband as Title II, is possibly a sort of “Net Neutrality-lite” that looks remarkably like what we had in 2008 — a complaint process based on Open Internet principles. As folks may recall, no one particularly liked that because it created all sorts of uncertainty as to what conduct would or wouldn’t be allowed and how far the FCC’s authority would reach. Every new business model becomes the possible subject of a complaint, and every complaint becomes a crap shoot because the FCC cannot actually impose a rule.

But apparently, “certainty” is for wussies in Telecom-ville. Welcome to the dynamic crazy town of Information Services Land! Who knows what anyone will do, who it might hurt, or what the FCC might do in response? Let the wackiness ensue and the good times roll.

The discussion of uncertainty reminds me of telecommunications companies’ complaints about USF/CAF. It does seem like there’s a lot in this industry that’s in flux. In a funny way maybe it’s time for the national broadband folks to take the advice I’ve seen given to local communities. Get the stakeholders around a table. Put the cards on the table – what do we have that you want and vice versa. You want certainty on CAF? And you want certainty on Net Neutrality? You want streamlined rules and regulations? And you want fast, affordable, ubiquitous broadband? OK – how can we make this work?

That probably won’t happen but lots of folks are chiming in. For example, Minnesota’s Senator Al Franken has some strong opinions…

“Anyone who goes online to shop, promote their business, or simply to connect with the world should be worried about today’s opinion,” said Sen. Franken. “I have been fighting to make sure the Internet is a level playing field for everyone—the website of a Minnesota small business should load as quickly as the website of a large corporation…Getting rid of net neutrality is bad for consumers and the economy, plain and simple. And it’s a real risk to the Internet as we know it. Net neutrality is the common-sense idea that big corporations like Verizon, Comcast, and Time Warner shouldn’t control who gets to innovate, communicate, or start a business on the Internet. The FCC needs to respond immediately in a way that keeps the internet open to all of us, not just big corporate interests.”

But what can they do? Apparently the FCC can appeal, come up with new rules or try to reclassify broadband providers. So I think we’re looking at a Chapter three for Net Neutrality.