Title II, Round II
WASHINGTON — A war of words is erupting on the very medium at the center of one of the biggest debates in this digital age: Who controls the Internet?
Should the Internet in the U.S. be allowed to continue to thrive as a marketplace of unfettered ideas and commerce, or should it be regulated like a public utility to keep big online companies from crushing competitors and upstarts?
The Web this month will be a supercharged battlefield, with competing sites trying to recruit supporters to both sides of the debate over Internet neutrality, as the Federal Communications Commission prepares to weigh in with new rules.
Internet activists have designated Wednesday (Sept. 10) as “Internet Slowdown Day.” Websites run by those who disagree with FCC chairman Tom Wheeler’s proposed new network-neutrality rules, buttressed by the agency’s authority under Section 706 of the Telecommunications Act, are encouraged to participate in a symbolic Internet slowdown, simulating on-screen “loading” icons to show what screens would look like with his plan. (See sidebar, “The Slow Lane.”) They have said that Section 706 would usher in an era of “fast” and “slow” lanes on the Internet.
Cable operators are fighting off “common carrier” reclassification under Title II of the Telecom Act — a drastic- but-real possibility — arguing that tough, utility-like restrictions would strangle the robust growth of the Internet as a conduit of commerce and information, making it a “net disaster, not net neutrality.”
Not surprisingly, slogans and hyperbole are easier to get behind than the complicated technology and legal issues of how networks have to be managed. It’s much easier to chant “Free the ’Net” than try to wrap your head around payments to edge providers, or what part of the statute applies in what way to make them legally sustainable.
There are multiple layers to the debate — political, technical and legal — with politics threatening to trump the other two facets.
The technical issues revolve around how network traffic management is handled today, versus a decade ago when the FCC first outlined its net neutrality rules. In effect, they are: What are Internet-service providers technically capable of doing, and are they harming other companies in any way that would threaten a free market?
“You would think that the technical would outweigh politics or public opinion, but I don’t think anyone can rely on that,” a cable-system executive familiar with the issue said.
That could put net neutrality in the same general category as the 2011 debate over a pair of proposed online anti-piracy bills, known in the House as the Stop Online Piracy Act (SOPA) and in the Senate as the PROTECT IP Act (PIPA). The laws appeared to be on their way to passage, but were bulldozed by a wave of Silicon Valley pushback that caught both Republicans and Democrats by surprise.
The FCC has received more than 1 million comments on network neutrality — and has vowed to review every one (the word “every” is bolded on the FCC website) — before it decides.
So, as both sides make their emotional pitches on the political front, and the issue is framed by a Colbert Report parody or catchy catchphrase, the FCC will need to do the grunt work of balancing the costs and benefits of a Section 706 approach vs. the consequences, intended and perhaps unintended, of Title II.
It wasn’t supposed to happen like this. Cable operators accepted the FCC’s Open Internet regulations back in 2010 as part of a compromise that avoided Title II reclassification. They are also generally on board with Wheeler’s proposed Section 706 approach this time around, which would allow for commercially reasonable discrimination as a way to defend the rules from another probable court challenge. (The original network neutrality rules, adopted in 2010, were struck down by a U.S. Appeals Court in January.)
Wheeler’s proposal is, or at least was, to restore the anti-blocking rule essentially intact, to recraft the antidiscrimination rule so that it is not a blanket ban and to beef up the transparency rule to make sure Web users know how networks were being managed.
To do that, he would use the FCC’s authority under Section 706 of the Telecommunications Act, which empowers the agency to regulate broadband in the interests of getting service to all Americans in a reasonable and timely fashion. Unreasonable discrimination and blocking could discourage adoption, and thus are subject to regulation.
But Wheeler’s proposal created a firestorm of pushback from Open Internet activists who saw the “commercially reasonable” standard as a path to Internet “fast” and “slow” lanes, an argument helped by over-the-top video titan Netflix’s complaints about paid peering deals with Comcast that brought middle-mile issues into the middle of the net neutrality debate.
Wheeler has spent the past several months trying to convince those critics he has no intention to create or allow those fast and slow lanes. He has kept Title II on the table as an option and invoked it as a possibility.
And that’s what has cable providers pushing back so hard, as they did in 2010, when then-FCC chairman Julius Genachowski essentially forced them to the negotiating table with the threat of Title II rules. That threat has remained in the background, likely one of the reasons there have been few complaints about networkneutrality violations since then.
Cable operators have argued it is not in their business interest to block or degrade websites, but it is clearly not in their political interest, with Title II on the shelf but still in reach of regulators.
The National Cable & Telecommunications Association was using its site last week to warn Web surfers of the “disaster” that Title II reclassification would be (see sidebar, “Net Disaster”) and launching an ad campaign warning of the dangers of regulating ISPs back to the “tone” age — as in telephone regulations from last century.
Elsewhere, other opponents of Title II classification launched an online “Don’t Break the Net” campaign Sept. 1 to get Web surfers to email Wheeler with the message that imposing Title II would be a big mistake.
“The FCC has better things to do than spend years fighting about Title II — like actually clearing barriers to competition and promoting investment in broadband,” said the coalition, whose members include the telco-backed TechFreedom, as well as small-government advocacy groups such as the Taxpayers Protection Alliance and Less Government.
The NCTA is not a member of the coalition, but it clearly sympathises with its message about the harms of Title II. The cable trade group has purchased digital and print ads in several Washington, D.C., publications and on local radio station WTOP, as well as a targeted national digital buy, to make that point.
The other side — net-neutrality activists Free Press, Demand Progress, and others — will try to make their point this Wednesday (Sept. 10) with what’s been billed as an “Internet Slowdown.”
The activists are calling on websites to blanket the ’Net with “loading icons”—those frustrating “chasing their tails” symbols of content still loading — to make the point about slow lanes. The goal is to drive calls and emails to lawmakers, but not actually to artificially slow down any content, which is what they said they are fighting against.
“Sites will employ icons that symbolize a slower Internet, but will not actually load more slowly,” Free Press, one of the groups helping organize the slowdown, said.
Why Sept. 10? Reply comments are due to the FCC Sept. 15 — and, at the pace they’re coming in, the total number of submissions is likely to be far in excess of 1 million.
“We chose Sept. 10 to kick off a week of action leading up to that deadline,” Free Press senior director of strategy Tim Karr said.
The Slow Lane
On Wednesday (Sept. 10), websites are being encouraged to participate in a symbolic Internet Slowdown, simulating those frustrating “loading” icons as a protest of FCC chairman Tom Wheeler’s proposed new network-neutrality rules.
“Millions already have spoken out against the FCC’s slow-lane scheme, but FCC chairman Tom Wheeler seems to think if he hides out in Washington the public will lose interest,” Free Press Action Fund President and CEO Craig Aaron said in announcing the protest. “But the public outcry is only growing louder — and the Internet Slowdown will show millions more people what a world without real Net Neutrality would look like. If you claim to support the free and open Internet, you must pick a side in this battle.”
According to organizers, supporters of the effort at press time included: the American Civil Liberties Union, Common Cause, the Center for Media Justice, Color of Change, Daily Kos, Demand Progress, Democracy for America, Democrats.com, the Electronic Frontier Foundation, Engine Advocacy, Fight for the Future, the Free Press Action Fund, the Future of Music Coalition, Greenpeace USA, Move On, the National Hispanic Media Coalition, OpenMedia, Popular Resistance, the Progressive Change Campaign Committee and Rootstrikers.
Websites said to be willing to participate included Reddit, Mozilla, Kickstarter, Etsy and Wordpress.
— John Eggerton
The National Cable & Telecommunications Association last week launched a campaign to fight back against the tide of net neutrality activists pushing for Title II reclassification of Internet access.
NCTA calls Title II “net disaster, not net neutrality.”
Here, from its website, is its expanded version of that rallying cry.
“We can build an open Internet without resorting to public utility regulation. The FCC can act responsibly to foster the continued growth of the Net and prevent anti-competitive activity, or it can capitulate to extremist voices who seek to force a result that would inflict major collateral damage on the Internet economy, and ironically, fail to serve the very ends they seek.
“Let’s not abandon the virtuous cycle that is helping build faster networks for one that promises greater government control and stalled investment. Let’s choose a future that embraces progress, not potholes.”
— John Eggerton
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.