Today, the FCC voted to accept "Protecting and Promoting the Open Internet," a provisional set of rules meant to protect net neutrality. After weeks of discussion inside and outside the FCC, the commission has passed a proposal with a lot of wiggle room and put it up for public comment. People on both sides of the aisle are just as conflicted as you’d expect. There’s been a tremendous amount of debate over what "protecting net neutrality" actually means, but the truth is that things are really only getting started.
For people who don’t want net neutrality rules on the books at all, this proposal’s very existence is a problem. But beyond that, some important issues are up for debate. The one that’s grabbed the most public attention so far — in fact, the reason many people are talking about the proposal at all — is "paid prioritization," often called "fast lanes," in which companies could make deals with ISPs for better-than-average service.
The original text reportedly included language letting companies make these deals as long as they were "commercially reasonable" and still guaranteed a minimum level of quality for every service. The amendment doesn’t explicitly allow this, but it leaves the issue mostly up in the air, despite FCC Chairman Tom Wheeler’s impassioned defense of "one internet." As he stated many times during the hearing and subsequent press conference, this proposal does not authorize an internet fast lane. But in its current form, it doesn’t prohibit it, either.
Things are really only getting started
The minimum level of service is one of the core elements of the plan. It could potentially include a requirement that ISPs keep raising their standards of service — if companies can make paid content faster, this would theoretically stop them from letting non-paid service languish in a "slow lane." But the issue of prioritization is left unsolved. The proposal asks for input on whether it should be banned outright; if it isn’t, it will supposedly be policed by a dedicated watchdog to "prevent unfair treatment" of consumers and internet companies.
None of this will matter, though, if the FCC turns out to not have legal authority to enforce its proposal. All of the above rules are based on Section 706 of the Telecommunications Act, which a federal court has said grants the agency limited authority to promote competition with net neutrality rules. Wheeler has called this an "invitation," but it’s a risky one, and ISPs will surely be trying to chip away at it. A draft bill in Congress would strip that authority altogether.
Wheeler believes that Section 706 is "the quickest way to make sure we have protections in place ... there are no protections in place right now." But he’s soliciting opinions on whether it’s actually the best way to go forward, saying the FCC will "seriously consider" regulating the internet under Title II common carrier rules, as originally laid out by Congress in the Telecommunications Act of 1996.
Reactions vary from outrage to cautious optimism
Net neutrality supporters and opponents have spent the last few weeks in varying levels of frustration at Wheeler’s proposal. But much of the response today has been conciliatory and forward-looking, particularly because of Wheeler’s amendments. Policy groups are gearing up for the impending four-month comment period, which will define the scope of the new rule. Here’s what the biggest names on both sides of the issue are saying.
Senator Al Franken (D-MN):
Today’s vote could spell the beginning of the end of the Internet as we know it, plain and simple. Because of net neutrality, the Internet has been a tremendous platform for innovation and connectivity. But the FCC has taken a woefully misguided step toward handing the Internet over to big corporations who can pay boatloads of money for preferential treatment. Anyone who values a free and open Internet should be deeply troubled by the FCC’s vote, and I plan to do everything I can to convince them that they need to change course.
White House Press Office
The President has made clear since he was a candidate that he strongly supports net neutrality and an open Internet ... The FCC’s efforts were dealt a real challenge by the Court of Appeals in January, but Chairman Wheeler has said his goal is to preserve an open Internet, and we are pleased to see that he is keeping all options on the table. We will be watching closely as the process moves forward in hopes that the final rule stays true to the spirit of net neutrality.
Nuala O’Connor, Center for Democracy and Technology:
The legal details may be complicated and controversial, but the goal is clear: We need safeguards that preserve the Internet as an open platform for innovation, competition, and the free flow of information. It is uncertain whether the FCC proposal can fully meet that goal. Today marks the starting line for a new conversation, not the finish line, and Chairman Wheeler seems to be asking the right questions. Everyone who values the Internet now has the opportunity to speak up and be heard.
We remain concerned that the proposed approach could legalize discrimination, harming innovation and punishing US consumers with a broadband experience that's worse than they already have. Netflix is not interested in a fast lane; we're interested in safeguarding an Open Internet.
David Cohen, Comcast:
We supported the FCC’s 2010 Open Internet rules because they struck the appropriate balance between consumer protection and reasonable network management rights for ISPs … We remain confident that the Commission will continue to appropriately balance its strong commitment to consumer protection with the need to allow network operators to manage their networks reasonably and to continue to encourage private investment in our nation’s broadband infrastructure. As strongly as we believe in the propriety of legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption, and kill jobs in America.
Consumers should not be denied highest quality access to the content of their choice because of discriminatory deals cut by their broadband Internet access provider. A strong non-discrimination rule is needed.
Alexis Ohanian, Reddit co-founder:
Wheeler is saying the right things, like "There is one Internet. It must be fast, it must be robust, and it must be open... the prospect of a gatekeeper choosing winners and losers on the Internet is unacceptable" and is proposing two options to get there — the only one that will work is Title II reclassification. Reclassifying broadband as a utility wasn't even on the table a few weeks ago, and now the FCC is responding to the will of the American people. There's much more work to be done, especially in the face of the millions telecom companies are spending on lobbyists to turn the internet into a segregated highway of fast and slow lanes, haves and have-nots. And our voices and votes are louder and stronger than their dollars.
Michael Weinberg, Public Knowledge:
This proposal from the FCC proves that the public is having an impact. After extensive public outcry, the FCC is asking questions about the fundamental legitimacy of fast lanes and exploring the viability of Title II … Despite this response, we are convinced that the net neutrality pathway the FCC is exploring remains insufficient to guarantee a truly open and neutral internet. The FCC’s proposal still falls well short of real net neutrality rules. It would create a two-tier internet where "commercially reasonable" discrimination is allowed on any connections that exceed an unknown "minimum level of access" defined by the FCC. A two-tier internet is anathema to a truly open internet, and rules under section 706 authority are insufficient to prevent harmful paid prioritization.
Randal Milch, Verizon:
Verizon has long been committed to an open Internet for a simple reason: Our customers demand it. This was true before the FCC ever considered putting rules in place, and serving our customers will ensure our commitment to an open Internet regardless of what the FCC does in the future ... We look forward to reviewing the FCC's proposal, and we will be constructively engaged in the months to come. But one thing is clear: For the FCC to impose 1930s utility regulation on the Internet would lead to years of legal and regulatory uncertainty and would jeopardize investment and innovation in broadband.
Victoria Kaplan, MoveOn.org:
An open Internet levels the playing field in our democracy and that's why it's so alarming that the FCC is moving forward Chairman Tom Wheeler’s proposed rules that would break President Obama's promise to uphold Net Neutrality — rules that could destroy the Internet as we know it.
Michael Beckerman, The Internet Association:
The Internet Association supports strong non-discrimination and no-blocking rules to protect consumers, startups, and the continued innovation of the Internet economy. In the debate about keeping the Internet open there has been too much rhetoric surrounding the FCC's legal tools. Protecting an open Internet, free from discriminatory or anti-competitive actions by broadband gatekeepers should be the cornerstone of Net Neutrality policy. The Internet Association will advocate for the FCC to use its full legal authority to enforce rules that lead to an open Internet —nothing should be taken off the table as this discussion evolves.
Bijan Sabet, investor in Twitter, Tumblr, and Foursquare:
I'm in shock the FCC would favor special interest groups over an open internet that does not discriminate over the bits that flow over the network. It's simply unacceptable to allow a few large corporations the ability to control content, media and information. An open internet has contributed to free speech, new ideas, fast growing important companies and more jobs. Why on earth would we want to ruin that?