Weasel Language In Proposal For FCC's New 'Open Internet' Rules Actually Opens The Door To An End To Net Neutrality

from the fast-lane dept

Yesterday reports started leaking about how FCC boss Tom Wheeler was getting ready to release his proposal for "new" net neutrality rules, to be voted on in a few weeks. They've now been introduced -- and Wheeler insists that all the whining and hand-wringing from yesterday was wrong. Except that's not true.

These new proposed rules are a response to a court tossing out the FCC's 2010 rules for not actually falling under the FCC's mandate. We pointed out that if the FCC were serious (and it's not), it should be focusing on increasing competition (which it's not). Congress certainly isn't going to do anything. Like previous FCC bosses, Commissioner Tom Wheeler has made it pretty clear that he's too timid to do anything serious, and instead will seek to find some sort of weak middle ground. Because there seems to be a rule that, if you're to become FCC Commissioner, you can't take a solid stand, but instead have to take a weak middle ground position and pretend it's a strong stand.

But what's currently being suggested may actually be worse. Because this opens the door to killing off net neutrality while pretending it's supporting net neutrality. As Stacey Higginbotham points out, even if Tom Wheeler believes this proposal makes sense, it's pretty ridiculous to claim it's net neutrality or about protecting an open internet. Wheeler should step up and admit what he's doing: killing off net neutrality to create a system that lets the big broadband providers double charge -- and then explain why he thinks that's necessary. Pretending this is net neutrality is a joke. Here's the basic proposals:

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

The key issue is that last one, in which the FCC claims it will still have the ability to stop "commercially unreasonable" activities by broadband providers, while refusing any attempt to explain what commercially unreasonable means. At the same time, it makes it pretty clear that "commercially reasonable" (again, undefined) rules will be allowed -- and it's likely this means allowing ISPs to create "fast lanes" by which they can charge more, so long as anyone with a lot of cash can also pay more.

This is not net neutrality. Yes, the 2nd rule means that no ISP will get away with the outright banning of access to websites, but no ISP was seriously considering that anyway. This bans a practice no one was going to do, meaning it doesn't ban anything. But by opening up "commercially reasonable" discrimination, it's allowing ISPs to create privileged "fast lanes" by which large internet players can "pay" to have preferred access to users. If you have a fast lane, by definition you also need a slow lane. So the (reasonable) fear here is that smaller entities, who can't pay for the fast lane, basically start out with degraded service compared to the big guys who can (and will) pay.

That means that services that don't pay up are throttled. By definition.

It's exactly what the big ISPs have wanted all along, which is a system to double charge big companies, who will now have to pay for both their own bandwidth and a portion of your bandwidth. If you think "hey, I already pay for my bandwidth," you're right. And now you'll likely have to pay much more, because the big companies who pay are going to pass the costs on to you. And, you'll have fewer interesting new services because the barriers to entry will be higher. So, the end result is the immensely profitable duopoly of internet service providers get more profitable and you pay more. Big internet companies pay off the broadband providers to stay fast, while startups and innovation are basically more difficult to create, because they're going to have to set aside a huge chunk of money to pay for some of the bandwidth that you're already paying for (and probably not getting anyway).

The Comcasts and AT&T's and Verizons of the world are going to parade up and down about how this will let them invest in better networks and provide better services, but there is absolutely no incentive here for them to actually do so. In fact, they have every incentive in the world to degrade service in the "slow lane" to make it less useful, driving more companies to need to pay for the fast lane.

These aren't rules for an open internet or for net neutrality. These are rules to kill that off.

"Commercially reasonable" are the weasel words here that effectively sell out the internet. The old rules were dreadful, and these rules are still just in proposal stages, but Wheeler's first foray into net neutrality is a joke. He's doing the same thing as his predecessor in refusing to stand up and say what he actually means, because he knows that what he's proposing is bad news.

Filed Under: broadband, commercially reasonable, commercially unreasonable, fast lane, fcc, net neutrality, open internet, slow lane, throttle, tom wheeler