FCC’s tender touch won’t save the internet

Nearly a month after the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) struck down the U.S. Federal Communications Commission’s (FCC) authority to enforce existing network neutrality rules, the FCC announced its response. In a statement today, FCC Chairman Tom Wheeler engaged in impressive verbal acrobatics to avoid the simple truth: In order to protect the open and innovative internet the FCC must correct its earlier mistakes and expand the agency’s regulatory authority over internet service providers (ISP) under Title II of the 1996 Communications Act.

Net neutrality, the principle that ISPs must treat all internet traffic equally, regardless of its origin, sender, recipient, type of content, or the means used to transmit it, is critical to preserving an open internet. It ensures that carriers must make equal efforts to deliver traffic to all points across the network, and cannot discriminate against traffic transiting within or across their networks.

After Circuit Court’s ruling Chairman Wheeler finds himself in a tight spot as he tries to appease both telecoms — who want to tighten their control over the internet — and the White House and advocates who want to ensure that the internet remains open. In a response this week to a petition demanding action to protect the internet, the White House stated that “Preserving an open Internet is vital not to just to the free flow of information, but also to promoting innovation and economic productivity…. Absent net neutrality, the Internet could turn into a high-priced private toll road that would be inaccessible to the next generation of visionaries.”

It does not appear that telcos and ISPs share the White House’s sentiment. During the D.C. Circuit Court’s hearings, Verizon’s testimony gave us a taste of what the telcos really want: to eliminate the rules that prevented them from discriminating against online traffic and applications, enabling them to establish tiers where those who pay more receive better service. A Verizon lawyer went so far as to say, “I’m authorized to state from my client today that, but for these [FCC] rules, we would be exploring those types of arrangements.”

Already, those online toll roads are beginning to take shape. According to several reports, Netflix, the data-heavy video streaming service, was among the first to be hit, reporting an average drop of 14 percent in prime-time speeds last month. Although this showdown between content providers (such as Netflix) and ISPs (such as Verizon) has been brewing for a while, it is as good a reason as any for the FCC to act on Chairman Wheeler’s promise today to “hold Internet Service Providers to their commitment” to honor the safeguards articulated in the 2010 Open Internet Order.

Without clear and binding rules from the FCC, it is only a matter of time before U.S. telcos race to maximize profits by discriminating against content and restricting choice online. And despite the better bits of his promises, Chairman Wheeler’s proposal to “carefully consider how Section 706 might be used to protect and promote an Open Internet consistent with the D.C. Circuit’s opinion” is simply not enough.

The FCC must act under its Title II authority and immediately take steps to reclassify ISPs as common carriers and telecommunications services. The FCC can do more to protect the internet and set a global standard.

Access recommends that the FCC incorporate the following provisions into meaningful and legally binding regulation:

  • The internet must be kept open and neutral. Reachability between all endpoints connected to the internet, without any form of restriction, must be maintained.
  • All data traf?c should be treated equally no matter its origin, recipient, type, or content. All forms of discriminatory traf?c management, such as blocking or throttling should be prohibited.
  • ISPs should not interfere with internet users’ freedom to access content and use applications of their choice from any device of their choice, unless such interference is necessary, proportionate, temporary, targeted, transparent, and in accordance with relevant laws.
  • Use of packet inspection software (including storage and re-use of associated data) should be reviewed to assess compliance with domestic and international laws and norms on privacy, access to information, and free expression. By default, these types of inspection techniques should only examine header information.
  • Complete information on reasonable traf?c management practices and justifications must be transparent and accountable to the public. Network operators should be transparent and accountable to any changes in practices.
  • Violation of net neutrality principles for “voluntary” law enforcement purposes must be prohibited unless there is a legal basis and predictable procedure in the jurisdiction where the restriction is being implemented.