Net neutrality is a tradition. Since the creating of the Internet, servers and routers that move pieces of information from place to place, from, say, this blog to your computer so you can read the words I’m writing, are content neutral. They don’t care, for the most part, where information is coming from and where it’s going. They move it along to its destination no matter what.
This means that networks along the way from a web server to your computer can’t interrupt your traffic. If your Internet Service Provider doesn’t like how you’re using your service, too bad. If what you’re doing is illegal, they can take action against you or the servers you’re communicating with, but they can’t stop you from watching Hulu just because they’d rather you watch movies on their website instead.
Recently, however, under the guise of "network management," Comcast and other internet service providers have started peeking at the information you are requesting and slowing down or blocking certain types of information. In the case of Comcast, they decided to block legal peer-to-peer traffic. This led to a lawsuit by the FCC to enforce net neutrality.
On April 6th, the DC Court of Appeals ruled against the FCC. The court didn’t say the FCC couldn’t enforce net neutrality or do most of the things it was planning to do to bring broadband service to Americans who currently don’t have it. Instead, they said the FCC couldn’t hardly regulate anything about Internet service because back in the Bush years, the FCC had classified the Internet as an "information service:"
Under intense pressure from phone and cable companies, the Bush FCC chose to reclassify broadband as an "information service" instead of a "communications service" that provides strong regulatory oversight of traditional telephone services. Problem is, the "information service" classification so lacks the required regulatory authority, that the court just decided the FCC can’t do anything. University of Michigan’s Susan Crawford explains it in detail here.
The good news is that there is a simple solution. FCC Chairman Genachowski must "reclassify" broadband as a "communications service." The formidable phone and cable companies will fight tooth and nail to keep that from happening, but the Comcast case has forced Chairman Genachowski’s hand: he must make the change. If not, the FCC has virtually no power to stop Comcast from blocking websites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. Bottom line: the agency has no power to enact the much-discussed National Broadband Plan, released just last month.
After weeks of discussion, Chairman Genechowski decided to reclassify the Internet as a "communications service," thus preserving the FCC’s right to protect the Internet from the likes of Comcast.
This brings us up to the present. Though the Chairman has decided to do the right thing and stand up to the big phone and cable companies, the reclassification hasn’t happened yet. The FCC will first develop the rules and regulations it will use and make public the ones it will ignore (there are lots of regulations that the FCC could by law put on communications services that apply to phone lines, for example, and not the Internet). Then there will be lots of public comments on those rules. Then, finally, after drafts and revisions, the FCC Commissioners will vote on the rules. There are 5 FCC Commissioners including the Chairmen, 2 Republicans and 3 Democrats, so the rules are likely to pass.
Of course, the telecom industry has declared war over the FCC’s moves. They’re lobbying the FCC itself incredibly hard as well as activating their tea-party aligned front groups with millions of dollars in ad money.
The battle is far from over. So where does this leave net neutrality and the National Broadband Plan? And where could the rules be weakened?
First, Congress could pass a new law changing the FCC’s authority over the Internet. Right now, according to current telecom law and Supreme Court precedent, the FCC is allowed to reclassify broadband in the way the Chairman is proposing. Congress could pass a law forcing the FCC to reclassify and thus more permanently protecting the Internet, or it could pass a low forbidding the FCC from protecting the Internet.
The chances of either law passing are low in my estimation. It’s hard to see either side of the fight getting majorities right now in either House of Congress, not to mention 60 votes in the Senate. And it’s hard to envision President Obama signing an anti-net neutrality bill even if it gets passed by both Houses.
This leaves telecom lobbyists with only one other option: get to the FCC and win corporate-friendly regulations. They’re already in danger of losing a big battle, though. Reclassification puts the FCC on excellent legal ground to do the work it needs to do to protect the Internet for consumers. So the lobbyists are concentrated on getting Chairman Genechowski to change his mind on reclassification, or get 3 of the 4 other Chairmen to vote against the plan.
Hence the letter writing campaign we’re seeing pop up. Lobbyists are getting Members of Congress to act like stooges, signing on to a misleading letter against the FCC’s plan in an attempt to sway the FCC’s position. Unfortunately, it’s not just business-friendly Republicans and Republican leadership who are signing on in an attempt to skim off telecom campaign donations. Democrats are, too, to the surprise and disappointment of advocates.
To counter this lobbyist push, Representative Jay Inslee has put together a letter of his own supporting the FCC’s move. Members of Congress who are interested in standing up for the people and against big corporations are signing on.
Click here to call your Member of Congress and ask them to sign as well. It’s time they took a stand and showed us which side they’re on – our side or Comcast and AT&T’s side.