The Nation has done, well, the nation a great service in providing this primer on what net neutrality is, the short history of it and how we got to last week, when the FCC proposed a rule that could signal the end to the concept, and an end to a free and open internet. Starting with the basics: net neutrality means that all internet traffic should be treated equally, every bit of content delivered to you at the same speed and quality as every other bit of content. What it really means is that the gatekeepers—the telecommunications companies that manage the "tubes" the information is pushed along—can't prioritize anyone's content.
Here's where we're at with that now:
Currently, Internet service providers are legally classified as “information services,” and the law says that no discrimination or price regulations are “necessary for consumer protection.” This means that the FCC has no authority to regulate those services, though the commission does have indirect authority to regulate interstate and international communications. After the FCC released its Open Internet Order, Verizon filed a lawsuit against the FCC claiming that the commission didn’t have the authority to make those rules or enforce them over Internet service providers like itself. In January of this year, the DC Court of Appeals agreed with Verizon and said that the FCC can’t stop Internet service providers from blocking or discriminating against websites or any other Internet traffic unless the Internet is reclassified as a public utility. But the court also said the FCC does have some authority to implement net neutrality rules so far as it promotes broadband deployment across the country.And here is a deeper look into what the FCC did last week in its proposed rule to answer that ruling.
In an attempt to try to balance that with the public interest, the Commission introduced three rules to keep the Internet “as an open platform enabling consumer choice, freedom of expression, end-user control, competition, and the freedom to innovate without permission.” Those three rules would require transparency about broadband providers’ practices; prohibit blocking any lawful website or app and ban “commercially unreasonable practices.”More on those three rules below the fold. But before you make the jump, please sign our petition to the FCC to keep a free and open internet.
The three proposed rules from the FCC:
The transparency rule would require Internet service providers to publicly share a performance report that would include information about their Internet speed and traffic congestion, as well as any instances of blocking content or pay-for-priority agreements like the ones described above.Here's the big rub: that still creates a two-tiered internet, with a fast lane. Now Wheeler would say that doesn't necessarily also mean a slow lane, because the FCC would make sure that it didn't. But it does mean that any innovation by the telecoms to make delivery of content faster and better would be reserved for the highest bidder. Which pretty much means that yes, there will also be a slow internet. But, Wheeler says, the FCC can make sure it's still fair by stopping "commercially unreasonable practices."
The no blocking rule would prohibit any Internet service company from outright blocking lawful content for any reason. This would prevent an Internet service provider from, for example, blocking the sites of their competitors.
The third rule, banning “commercially unreasonable practices,” is not as clearly defined, but it generally bans unfair business practices. FCC Chairman Tom Wheeler has said in the past that he wouldn’t accept, for example, practices that would slow down your access to a particular website if you paid for a certain Internet speed. So if you paid for high-speed Internet access and you want to read something on TheNation.com, your Internet service company can’t slow your access to DSL speeds because that would be “commercially unreasonable.”
Problem is, he doesn't define what "commercially unreasonable practices" might be. That gives plenty of wiggle room for telecoms to plead innocence or ignorance. It also means that future FCCs, ones appointed by Republican presidents for example, can choose how tightly they want to interpret "unreasonable" practices.
Clearly, the most straightforward, legally justified option for the FCC is to reclassify broadband. That's one of the possibilities the FCC is considering under this proposed rule, but clearly not its preference. That's why it's so critical that they hear from the public that real net neutrality needs to be preserved.