The Federal Communications Commission has received about 4-million comments on its undertaking to remake the rules on network neutrality on the Internet. But it's fair to say that one comment, filed Monday, outweighs all the rest.
It came from President Obama, and it amounted to his most forceful defense yet of the open Internet.
Net neutrality, in simple terms, is the principle that Internet service provider--think Comcast, Time Warner or Verizon--can't discriminate among content providers trying to reach you online--they can't block websites or services, degrade their signal or slow their traffic or, conversely, provide a faster lane for some providers rather than others.
As I've observed in the past, net neutrality has been getting steadily eroded under pressure from influential Internet service providers such as Comcast, and with the indulgence of the FCC. The agency has been trying to tighten its standards for the open Internet, but it's been slapped down twice by federal courts that say it's going about it in the wrong way.
President Obama's appointee as FCC chairman, Tom Wheeler, has proposed new rules. But they'd allow special deals between ISPs and content providers, with the FCC stepping in only after the fact if they're viewed as violations of the open Internet.
Obama on Monday told Wheeler, essentially, that his proposal is too lenient by drawing an unmistakable line in the sand. No blocking, no throttling and an "explicit ban on paid prioritization." As he said in a video and written statement released by the White House, "no service should be stuck in a 'slow lane' because it does not pay a fee."
Then he went much further, not merely reiterating his support for net neutrality, but throwing his weight behind the option thought to give the FCC the greatest legal jurisdiction over the rules of the Internet road. That's the reclassification of the Internet as a telecommunications service under Title II of the Telecommunications Act. That would recognize broadband as a "common carrier" utility service like the telephone--which for most of us is an apt description of its importance. Reclassification would reverse a decision the FCC made in 2002, when it classified the Internet as an information service, effectively tying its own regulatory hands behind its back.
The president's ability to influence the FCC is uncertain. It's an independent agency, and once its members are appointed (currently three Democrats, including Wheeler, and two Republicans), they're on their own. Obama may have limited his own sway by appointing Wheeler, a former telecommunications and cable lobbyist, to his post. In responding to Obama's statement, Wheeler was both deferential and resistant: He described the reclassification option as one that raises "policy issues that run the gamut from privacy to universal service to the ability of federal agencies to protect consumers, as well as legal issues."
Industry lobbyists weren't even that kind. As one would expect, Obama's endorsement of reclassification drew a sharp rebuke from Michael Powell, CEO of the National Cable and Telecommunications Assn., the lobbying arm for the companies that benefit most from the FCC's lax regulation.
Powell said the NCTA is "stunned the President would abandon the longstanding, bipartisan policy of lightly regulating the Internet." Of course it is.
But you have to know your history to fully appreciate the irony in the NCTA's response. The FCC chairman who pushed through the 2002 reclassification was this very same Michael Powell, who transitioned smoothly from carrying the industry's water as a government official to doing the same as a paid lobbyist.
Today Powell calls Title II regulation "extreme" and says that reclassification would represent a "tectonic shift" in national policy. He's wrong of course; the tectonic shift occurred in 2002, at his hands.
Since then, a service that should be a public utility has become increasingly a series of family estates of monopoly providers that plainly think it's theirs to exploit. "The Internet has not just appeared by accident or gift," stated Comcast Executive Vice President David L. Cohen. "It has been built by companies like ours investing and building networks and infrastructure."
Cohen has it exactly backward. The Internet wouldn't exist at all were it not for the public's investment--it was built on the foundations of the ARPAnet, which was created and nurtured by the government in the 1960s and '70s before being turned over to the private sector. Indeed, if left to the monopoly phone company of that era, AT&T, which obstructed the program, the Internet might not exist today at all.
More recently, the new incumbents have done their best to secure their new monopoly. The virtual absence of competition for Internet access--cable operators like Comcast are monopoly providers everywhere they operate, and fiber competition from AT&T and Verizon is available in only limited areas--have reduced the U.S. to a global also-ran, condemned to some of the slowest average speeds and highest prices in the developed world.
That's the harvest of Internet deregulation. Today's Internet service providers want to preserve their right to offer indifferent performance at high prices. Reestablishing the FCC as an effective, proactive regulator would counterbalance that impulse.
The cable and telecom industries will be fighting the Obama principles with everything they've got, and they've got plenty of money and influence on Capitol Hill. The court challenges that overturned the FCC's two most recent attempts to impose network neutrality on ISPs were brought by Comcast and Verizon. Yet in the most recent ruling in January, the Court of Appeals for the District of Columbia hinted that it would look kindly on the FCC's returning to Title II classification as a way to bind American ISPs to net neutrality principles.
Wheeler may continue to resist, but the court and now President Obama have laid out the best course for the FCC: It's necessary to turn the clock back to 2002 in order to allow the Internet to keep moving forward.