The unbearable clarity of "common carrier" status
The DC Circuit Court of Appeals already ruled out any and all attempts at "common carrier" Internet neutrality regulation under the Federal Communication Commission's current scheme, in which the FCC classifies internet service providers as "information services" (Telecommunications Act Title I), like it does with cable TV. The Court said, plain as day, that the FCC definitely has the authority to apply common carrier regulations, but only if the FCC instead classifies ISPs as "telecommunications services" (Telecommunications Act Title II), like telephones. The Court decided correctly—it applied the letter and intent of the law, as a court is meant to do.
So, what does FCC Chairman and former telecom lobbyist Tom Wheeler propose? To at last properly classify ISPs as common carrier telecommunications services, thereby achieving Net neutrality in one fell stroke? Which is something the FCC is fully within its power to start doing today? A simple classification change, poof, done?
Nope.
Instead, we shall all play patty-cake.
FCC 14-61
Before the Federal Communications Commission
In the Matter of Protecting and Promoting the Open Internet
GN Docket No. 14-28
NOTICE OF PROPOSED RULEMAKING
Adopted: May 15, 2014
102
One way to define a minimum level of access is as a requirement that broadband providers apply no less than a "best effort" standard to deliver traffic to end users. For any particular type of Internet traffic, best-effort delivery would represent the "typical" level of service for that type of traffic—in effect, routing traffic according to the "traditional" architecture of the Internet. Broadband providers would be free to negotiate "better than typical" delivery with edge providers, and would be prohibited (subject to reasonable network management) from delivering "worse than typical" service in the form of degradation or outright blocking.
Isn't that easy? All it takes is the power of positive thinking. If you would just accept the lie that you're getting good service, then you would have nothing to complain about!
Don't you see? If the FCC says that it's ensuring Net neutrality, but doesn't actually do it, then no one can challenge it in court. Genius!
And you can rest assured that the good people in charge of the FCC are agonizing over this and are certainly, earnestly, no-really-we-are, honest-to-goodness looking out for your best interests:
STATEMENT OF CHAIRMAN TOM WHEELER
Re: Protecting and Promoting the Open Internet, GN Docket No. 14-28.
I will not allow the national asset of an Open Internet to be compromised. I understand this issue in my bones. I can show you the scars from when my companies were denied open access in the pre-Internet days.
The consideration we are beginning today is not about whether the Internet must be open, but about how and when we will have rules in place to assure an Open Internet. My preference has been to follow the roadmap laid out by the D.C. Circuit in the belief that it was the fastest and best way to get protections in place. I have also indicated repeatedly that I am open to using Title II.
Buuuuuuuuuuut... he won't.
Leading into that statement, Chairman Wheeler proposed a bunch of Net neutrality rules that he said he'd favor—all things that the ISPs would sue to overturn, and that the courts would duly strike down. Again. And that's after he said that sticking with Title I would make for rules that are less likely to face court challenges. Milo Minderbinder ain't got nothin' on good ol' Tom Wheeler!
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Essential reading, and the "inspiration" for this post, with a can't-be-denied title:
The FCC Thinks We're All Idiots
By Ashley Feinberg, May 17, 2014, Gizmodo
More:
FCC Chair: I could make Net neutrality happen today, but I don't wanna
The unbearable clarity of "common carrier" status
By Simplify, Apr. 30, 2014
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