The net neutrality battle: FCC chairman backs away, but not enough

Fans of net neutrality--the idea that Internet service providers shouldn’t be able to block, slow, or favor some content providers over others--should show FCC Chairman Tom Wheeler a little love.

Obviously, that’s not because Wheeler’s open-Internet proposal, scheduled for presentation to his fellow Federal Communications Commission members on Thursday, upholds the net neutrality principle. It doesn’t; by condoning “paid prioritization,” through which some content providers can pay to get better access to users than others, it does immense violence to the principle.

No, Wheeler deserves some love because his ham-handed way of putting out his plan has placed what might otherwise be an obscure proposal followed mainly by techies on a much bigger burner.

Wheeler has responded to the public uproar generated by his plan to back off it, a wee bit. It’s still bad for the Internet.

Thursday’s vote wouldn’t implement Wheeler’s proposal, but open it up for public comment. But it would be a major step in the wrong direction.

Here’s Wheeler’s plan in a nutshell, as we described it last month: He would allow ISPs, such as Comcast, Time Warner Cable, Verizon, or AT&T, to favor some traffic under “commercially reasonable” arrangements, to be reviewed by the FCC on a case-by-case basis. They’d be forbidden to block any legal websites or services outright.

There is no question that allowing such arrangements would be a major retreat for the FCC. The agency wold be placed in the position of ruling on commercial deals that already had been put in place, and trying to unwind those it didn’t like, based on very murky standards. This would be like trying to dismantle a skyscraper after it’s been built.

Wheeler is hinting that a new version of his plan would ensure that the FCC scrutinizes every paid prioritization deal closely, which you might label a “Yeah, right” provision. A description of the proposal published in the Wall Street Journal seems to say ISPs would have to give most-favored-nation status to all content providers--offering all the best terms for prioritization it reaches with any. But that’s a toothless promise; the problem is that big content companies can afford to pay prices for fast lanes to reach their subscribers that smaller companies and startups can’t.

The basic problem with Wheeler’s approach is that courts have signaled that they’ll place strict limits on the FCC’s judgment. In the words of the federal appeals court that overturned the FCC’s most recent attempt at this sort of regulation in January, the agency would have to give ISPs significant “room for individualized bargaining and discrimination in terms” before rejecting a prioritization deal. How much leeway for deal-making is “significant”? Who knows? Unwinding a deal would be like dismantling a skyscraper after it’s been built, while standing on a tightrope.

It’s clearer than ever now that the FCC’s only real option is to designate ISPs as providers of “telecommunications” service. This means reversing a terrible decision the FCC made in 2002, under then-Chairman Michael Powell, when it classified broadband as an “information” rather than “telecommunications” service. This destroyed its authority to regulate ISPs broadly, and it has been trying to walk a legal maze ever since. Powell is now the chief lobbyist in Washington for cable companies, the biggest players in the ISP space. Big surprise.

As telecommunications common carriers, the ISPs would unquestionably come under the FCC’s jurisdiction to outlaw special deals. You never hear some callers to your home phone coming in loud and clear while others are staticky because the former have cut a deal with your phone company, because for common carriers that’s strictly forbidden. Broadband service has become every bit as much a utility as landline phones used to be, and it should be regulated every bit as strictly.

The standard wisdom in Washington has been that reclassification is a dead issue because the cable operators, which have lots of money and influence, won’t stand for it.

But that case may have been undermined by Wheeler’s attempt to take over the net neutrality issue unilaterally, without any prior discussion with the other commissioners. He has focused consumers’ attention on what they might lose if his proposal goes through. Pushed along by public-interest groups like Free Press and Public Knowledge, the public has overwhelmed FCC phone lines with objections to the plan. When Google, Amazon, and about 100 other high-tech companies issued a letter to the FCC opposing “blocking, discrimination, and paid prioritization,” they got worldwide news coverage. (And they have lots of money and influence too.)

Meanwhile, Wheeler’s maneuver has increased public suspicion about his own motivations and about his long, fruitful relationship with the cable industry, the one business that will unquestionably gain from his plan. From 1979 to 1984 he was president and CEO of the National Cable Television Assn., which is now headed by his predecessor as FCC chairman, Powell. (Hmmm.) From 1992 to 2004, he was head of the Cellular Telecommunications & Internet Assn., another gang of Internet providers hostile to strict net neutrality regulation.

The battle over Wheeler’s proposal is beginning to look a bit like the fight in 2011 against two purported anti-piracy measures ginned up by Hollywood, including the Stop Online Piracy Act, or SOPA. Fighting the bills, which would have given government and private companies heavy-handed powers against even innocent websites, looked like a losing battle, just like the fight for ISP reclassification does now. But the web community rose up and defeated them, a model for the net neutrality fight.

FCC Commissioner Jessica Rosenworcel, like Wheeler a Democrat, last week called for him to put off the FCC vote on his plan for at least a month. “Rushing headlong into a rule-making next week,” she told a conference of state library administrators, “fails to respect the public response to his proposal. At a minimum, I think we need to recognize that this is not business as usual.”

It’s time for Wheeler to accept that.