On a site like this, "network neutrality" is treated as a motherhood idea, like social security or a national health care plan. Sure, it sounds good. But it's woefully difficult to legislate. Especially to get right.
It's all about politics. But like so many of the Obama administration's recent actions, they've committed a serious error: If you're going to play politics, the biggest sin is to do it badly and look foolish.
Today's FCC announcement is another mistake in a long line. But not for the reasons that most people here cite. As I diaried in May, Why network neutrality is so hard to legislate, the Internet is a complex beast that can't be regulated easily. It is not a thing. It is magic. It just happens. Internet is what people do when they're given the chance. And the FCC failed once again to give us the chance.
If network neutrality were a health care plan, it would simply outlaw getting sick.
There was no problem of "neutrality" before 2005, when the FCC revoked a longstanding (pre-Internet) rule, known as Computer II, which clearly distinguished between "basic services" (wire, phone calls, leased lines) and "enhanced services" (computer services, Internet, etc.) which made use of them. Under Computer II, the phone companies could only offer enhanced services if the underlying basic services were made available to anyone, on the same terms. So telco DSL was available with telco-affiliated ISP service (Verizon Online, SBC Yahoo, etc.), but also on a wholesale basis to other ISPs. This was a wonderful check on Bell ISP behavior. They usually had >90% market share, but if they turned bad enough, competitors' share could grow rapidly.
Absent this rule, we're down to a duopoly in most places: One DSL ISP (the phone company) and one cable ISP. Contrary to a common assertion here and elsewhere, cable was never open (by rule) to third-party ISPs. The FCC affirmed this in 2002, but that was not a new rule.
Without much competition, it's perfectly reasonable to expect ISPs to misbehave. But in the past five years, they have almost never done so! Look at the fearmongering on this site: "Right wing talk radio". "Corporate takeover". But the plain fact is that the big ISPs, even the evil Bells, have never blocked web sites. They've never blocked ordinary applications. Comcast slightly slowed down file servers, but those were a violation of their published terms of service in the first place, and it was so subtle that it was very hard to detect. (Comcast customers always could get files from Torrent; it was unattended servers that were slowed down.)
Why have they not done bad stuff? Two reasons. One is that they worried that regulators could find them in violation of something or other. Two is that it just doesn't make business sense. In reality, the tech crews are busy enough blocking bad shit that you don't want: Spam, denial of service attacks, hijacks. There's plenty of that on the Internet.
So what did the FCC rule today? Dumb stuff. They did not hold that the underlying transport had to be opened up. So the duopoly is intact. Verizon and AT&T got their way. They did rule for transparency, so ISPs should disclose policies. Okay...
They ruled for no blocking of lawful content. Sounds good, right? Uh, no. Two problems. One, spam is legal! Under the CAN SPAM act, you can spam! Also, the spammer's response web sites are not spam, and are "legal", but they're routinely blocked to reduce the value of spamming.
Problem two: Video. Television streams take about 20-50 times the capacity of voice streams. They totally clobber networks. The Internet's free market scheme to date has allowed ISPs to decide how much capacity to devote to what function. TV threatens to totally overwhelm the rest of the Internet. And it's TV distributors who are pushing hardest for neutrality rules. So the result is that a "neutral" ISP must either continue to raise prices in order to handle the heavier load, or move to a measured service model (pay by the bit). If you're not a vidiot, wouldn't it be better to at least have a choice of ISPs that offers an unmetered plan that doesn't work well for TV? (YouTube, for what it's worth, uses much less capacity than broadcast-quality streams. And it's not really a stream; on a slow link, it buffers.)
So we have an FCC that is ruling in favor of video and against interactive, speed-sensitive and loss-sensitive applications (voice, game playing, interactive applications). Because the Internet is not designed to mix TV and data, it's threatening to become another Vast Wasteland. Should this be mandated by law?
As an added bonus, by regulating the Internet per se, and essentially regulating content via a sort of must-carry obligation, the FCC has abandoned the long-standing American position that the Internet should be free worldwide. In his dissent, Commissioner Robert McDowell wrote,
Today, the United States is abandoning the longstanding bipartisan and international consensus to insulate the Internet from state meddling in favor of a preference for top-down control by unelected political appointees, three of whom will decide what constitutes "reasonable" behavior. Through its actions, the majority is inviting countries around the globe to do the same thing. "Reasonable" is a subjective term. Not only is it perhaps the most litigated word in American history, its definition varies radically from country to country. The precedent has now been set for the Internet to be subjected to state interpretations of "reasonable" by governments of all stripes. In fact, at the United Nations just last Wednesday, a renewed effort by representatives from countries such as China and Saudi Arabia is calling for what one press account says is, "an international body made up of Government representatives that would attempt to create global standards for policing the internet." By not just sanctioning, but encouraging more state intrusion into the Internet’s affairs, the majority is fueling a global Internet regulatory pandemic. Internet freedom will not be enhanced, it will suffer.
Fortunately, the FCC screwed up the legalities too. Big time. So badly that I think it was intentional. Yes, Kogs, you've been rolled by Julius G. Here's the short form: The DC Circuit Court of Appeals ruled in May that the FCC's earlier Comcast Order was void, because they didn't cite a "nexus" to a part of the law (the Communications Act, 47 USC Chapter 5) that grants that power. In particular, Title II regulates common carriers. If the FCC held that the transmission part of Internet access was (again) common carriage, that could be regulated. But the FCC refused to go there.
Today's Order was supposed to be a response to the DC Circuit. So what did they do? They again ran away from Title II as if it were an exploding pesticide factory. The key nexus was to Section 706, which grants no regulatory authority at all. It's an obvious mistake, which was amply discussed in FCC Lawyer circles over the past month. They also make some other lame cites, none of which make a bit of sense. They did almost exactly what the DC Circuit told them would not stand up. If you want to see a really good analysis of this, just read Commissioner McDowell's dissent. It is very well written. Yes, he's a Republican, but he's a sane guy, not a 'bagger, and he understands the law.
So the real joke is on those who want these rules to stick. They won't. They won't be allowed to take effect. They won't be enforced. They'll be lawyer bait as the court does its thing. And if Julius has it timed right, the court will overturn the order just after the next election. It's an act, a kabuki dance to let the base think that he gives a shit, when he really is shilling for Verizon. (Not AT&T; he has a hard-on for FiOS.)
The only way to preserve the openness we like on the Internet is to restore common carriage. All of the crap that the FCC is now pushing is for show. And the tragedy is that it satisfies almost no one. Not the pro-neutrality group, which is afraid of potential harm. Not the TV distributors, who are afraid of "reasonable network management". Not the surviving small ISPs, who are afraid of costly legal attacks. Not the free marketers, who don't want the Internet to be regulated at all. No, he's triangulated into a space that almost nobody supports, and looks bad in the process. Bad policy and bad politics.