The wrong words.
That was the overwhelming message delivered to the FCC by the DC Circuit yesterday when it ruled to vacate the agency’s net neutrality rules. The FCC had tried to impose so-called “common carrier” regulations on broadband providers without officially classifying them as utilities subject to those types of rules, and the court rejected that sleight of hand. Most observers saw the decision coming months, if not years, ago; Cardozo Law School’s Susan Crawford called the FCC’s position a “house of cards.”
I’ll be a little more clear: it’s bullshit. Bullshit built on cowardice and political expediency instead of sound policymaking. Bullshit built on the wrong words.
Since 1980, the FCC has divided communication services into basic and enhanced categories; phone lines, with their "pure" transmission, are basic, while services like web hosting, which process information, are enhanced. Only basic services are subject to what are known as common carrier laws, which stop carriers from discriminating against or refusing service to customers. Over time, those categories matured and gained new names: the basic services were tightly regulated under Title II of the Telecommunications Act as "telecommunications services," while enhanced services were regulated under the much weaker Title I as "information services."
What is net neutrality?
At its simplest, net neutrality holds that just as phone companies can’t check who’s on the line and selectively block or degrade the service of callers, everyone on the internet should start on roughly the same footing: ISPs shouldn’t slow down services, block legal content, or let companies pay for their data to get to customers faster than a competitor’s.
In this case, we’re also talking about a very specific policy: the Open Internet Order, which the FCC adopted in 2010. Under the order, wired and wireless broadband providers must disclose how they manage network traffic. Wired providers can’t block lawful content, software, services, or devices, and wireless providers can’t block websites or directly competing apps. And wired providers can’t "unreasonably discriminate" in transmitting information. The FCC has been trying in one way or another to implement net neutrality rules since 2005, but this latest defeat is the second time its principles have been put to the test and failed.
The FCC adopts its "Computer II" policies, establishing separate rules for "basic" and "enhanced" communications services. Basic services are subject to "common carrier" rules, which stop them from blocking or discriminating against traffic over their networks.
The new Telecommunications Act creates more specific terms. Basic services are now called Title II "telecommunications carriers," which simply transmit information, and enhanced services that offer interactive features are classified as Title I "information service providers." DSL companies are classified as carriers, while AOL-style internet portals fall under information services.
After legal confusion, cable broadband is defined as an information service, effectively exempting the most popular consumer internet providers from common carrier rules.
A court decision upholds the FCC's definitions, but DSL and wireless are reclassified as information services. The FCC establishes its first set of "open internet" rules, four principles that grant users the right to access any lawful content and use any devices and services they want on a network.
Comcast is found to be slowing down BitTorrent traffic, hurting customers’ ability to use the service.
The FCC requires Comcast to change its policy, but Comcast files suit to overturn the order, arguing that the FCC has no authority to censure it.
FCC chair Julius Genachowski proposes two new open internet principles: non-discrimination, which would stop carriers from slowing particular services, and transparency, which would require them to make their network management practices public. His idea is to take specific rules that govern Title II telecommunications carriers and apply them to Title I information service providers.
After its defeat in court, the FCC revises its standards and releases Genachowski’s Open Internet Order, justifying it as a necessary move to promote broadband adoption. Broadband companies are still classified as information service providers.
The Open Internet rules go into effect, barring wired broadband providers from blocking, slowing, or prioritizing traffic in most cases. In a compromise, wireless carriers were exempted from these rules.
Verizon and MetroPCS appeal the order.
January 14th, 2014
The DC court once again rules against the FCC, striking down its anti-blocking and anti-discrimination requirements in an almost complete victory for Verizon. The court says that the FCC has proven that broadband providers represent a threat to internet openness, but that the government can’t impose common carrier rules on information service providers.
In 2002, the FCC made what would turn out to be a pivotal mistake. Instead of stating the blindingly obvious — internet service is a utility just like landline phone service — the FCC tried to appease the out-of-control corporate egos of behemoths like Verizon and Comcast by pretending internet providers were special and classifying them as "information service providers" and not "telecommunications carriers." The wrong words. Then, once everyone was wearing the nametag they wanted, the FCC tried to impose common carrier-style telecommunications regulations on them anyway.
The FCC’s first attempt to regulate broadband providers consisted of four "open internet" principles adopted in 2005. They were meant to "encourage broadband deployment and preserve and promote the open and interconnected nature of the public internet" by stopping companies like AT&T and Comcast from blocking devices or services.
In 2007 the house of cards started tumbling down. Comcast customers found that the company was drastically slowing BitTorrent speeds and the FCC took action, slapping it with an order to stop the throttling and tell subscribers exactly how it managed their traffic. Comcast agreed to the plan, but it took the whole issue to court, making a point that would come up again and again: the FCC’s justification for the open internet principles were vague at best. The issue was so contentious and so important to the titans of the internet and media industries that net neutrality became an issue in the 2008 presidential election, with Obama issuing his support for an open internet.
Even with Obama’s support, Comcast beat the FCC in 2010 when Judge David Tatel — the same judge who wrote yesterday’s net neutrality decision — found that the agency lacked the authority to enforce the open internet principles because Comcast was an information service provider, not a telecommunications provider. The FCC had used the wrong words.
Too bad you used the wrong fucking words
The timing could hardly have been worse. Newly appointed FCC chairman Julius Genachowski had just started work on a revamped version of the open internet rules, adding two principles that directly addressed Comcast's actions: companies couldn't discriminate against traffic by slowing it beyond what was necessary to keep a network running, and they had to be transparent about any reasonable management. When the Comcast decision came down in early 2010, the FCC scrambled to build a stronger framework under Title II, but Genachowski backed down under enormous pressure from major service providers and instead reached consensus with the industry. He declined to reclassify broadband as a telecommunications service and further compromised by exempting mobile providers from the regulations. The process resulted in the Open Internet Order, which enshrined transparency and non-discrimination but was still built on the wrong words. Critics like Susan Crawford referred to the plan as "once more, with feeling." Comcast was happy, but Verizon wasn’t; it took the FCC to court once again.
And as we saw yesterday, Genachowski’s Open Internet Order didn't stand up any better. No matter how the FCC defends its rules, net neutrality regulations for information services look a whole lot like common carrier rules for telecommunications providers — and all Verizon had to do was point that out.
That’s it. That’s the whole mistake. The wrong words. The entire American internet experience is now at risk of turning into a walled garden of corporate control because the FCC chickened out and picked the wrong words in 2002, and the court called them on it twice over. You used the wrong words. The court even agreed with the FCC’s policy goals — after a bitterly fought lawsuit and thousands of pages of high-priced arguments from Verizon and its supporters, Judge Tatel was convinced that "broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment."
Too bad you used the wrong fucking words.
What happens now is entirely dependent on whether the FCC’s new chairman, Tom Wheeler, has the courage to stand up and finally say the right words — that broadband access is a telecommunications service that should be regulated just like landline phones. He need only convince two additional FCC commissioners to agree with him, and the argument is simple: consumers already perceive internet service as a utility, and it’s advertised only on the commodity basis of speed and price. But the political cost will be incredible.
"Broadband providers represent a threat to internet openness."
National Cable and Telecommunications Association CEO Michael Powell — the former FCC chairman who issued the 2005 open internet rules — has said that any attempts to reclassify broadband as a common carrier telecommunications service will be "World War III." That’s not an idle threat: the NCTA is a powerful force in the industry, and it counts major companies like Comcast and Time Warner Cable as members. That’s a lot of influence to throw around — not only does Comcast lobby and donate freely, but it also owns NBCUniversal, giving it the kind of power over the American political conversation few corporations have even dared to dream about. Put enough pressure on Congress, and they’ll start making noise about the FCC’s budget — a budget Wheeler needs to hold his upcoming spectrum auctions, which have until now been the cornerstone of his regulatory agenda.
So, this is going to be chaos. All you’re going to hear from now on is that net neutrality proponents want to "regulate the internet," a conflation so insidious it boggles the mind. Comcast and Time Warner Cable and Verizon are not the internet. We are the internet — the people. It is us who make things like Reddit and Facebook and Twitter vibrant communities of unfiltered conversation. It is us who wield the unaffected market power that picks Google over Bing and Amazon over everything. It’s us who turned Netflix from a DVD-by-mail company into a video giant that uses a third of the US internet’s bandwidth each night. And it is us who can quit stable but boring corporate jobs to start new businesses like The Verge and Vox Media without anyone’s permission.
Comcast and Verizon are just pipes. The dumber the better.
It’s time to start using the right words.
Sidebar and additional reporting by Adi Robertson.