The Obama Administration is about to cave on Network Neutrality after three years of promising to promote it.

Leaks from FCC Chairman Genichowski’s office suggest that the FCC will remain passive after the US Court of Appeals for the District of Columbia weakened the FCC’s ability to enforce the Four Internet Freedoms. These “Freedoms” were already inadequate guarantees of open Internet access. They were substitutes that were put in place when the Powell and Martin FCCs moved away from governing the Internet as a Telecommunications Service. Instead, Powell’s FCC, then Martin’s, chose to govern it as an Information Service. The recent Appeals Court ruling (.pdf) said the FCC had exceeded its authority to regulate Information Services. The Court implied that the FCC can’t prohibit Internet access providers from impeding or advantaging content. By so ruling, the Court rendered Genichowski’s previous approach to promoting Network Neutrality — adding two additional “Freedoms,” consumer information and non-discrimination — ineffectual.

There’s nothing stopping the FCC from re-reclassifying the Internet as a Telecommunications Service. As long as the Internet has been widely used, its treatment under the law has been in flux. Beginning in 2001, Powell’s FCC, then Martin’s took steps to classify Internet connectivity as an Information Service. The FCC’s authority to classify the Internet as an Information Service rather than a Telecommunications Service is the basis of the Appeals Court ruling. Indeed, the FCC’s ability to classify the Internet as an Information Service or as a Telecommunications Service remains.

Since the Powell era, the Internet has gone from what was arguably a luxury to a necessity of everyday life. Powell famously equated Internet access to owning a Mercedes Benz, flippantly saying, “I’d like to have one, but I can’t afford one,” on February 6, 2001 [source]. Today I’d bet that when Mike Powell looks back on this statement, he wishes he could take it back. Today the Internet is a necessity, not a luxury.

Accordingly, the call has gone out for the FCC to govern the Internet as a Telecommunications Service. Susan Crawford, former Obama special assistant for science, technology and innovation policy, writing in the New York Times, said,

[The FCC] can regain its authority to pursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as “telecommunications services,” rather than “information services,” as they are called now. All the commission needs to do is prove it has a good reason. It wouldn’t be the first time that the F.C.C. relabeled Internet access services — and certainly not the first time it addressed the need for equal access . . . There [is] nothing unusual about this legal requirement; for more than 100 years, federal regulators had treated telegraph and telephone service providers as “common carriers,” obligated to serve everyone equally.

But no. The Washington Post reports:

The [three FCC] sources said Genachowski thinks “reclassifying” broadband to allow for more regulation would be overly burdensome on carriers and would deter investment.

Investment in what? A non-neutral, discriminatory, walled-garden, cash-cow series of tubes? This is not what the U.S. needs. It needs the Internet. What is Chairman G thinking?

Remember when Obama said, “No telco spying,” until he voted in favor of telco spying? I’m hoping this isn’t another one of those.

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9 Comments

  1. Will Obama FCC Break Network Neutrality Promise—Undermine 21st Century Public Sphere? « Marvin Ammori says:

    [...] the article is simple for those watching this debate: the FCC is considering following the Bush administration’s disastrous [...]

  2. Donald & Naomi Johnston says:

    Dear Sir.
    I can’t afford an internet that is not neutral. Since the internet was generated by the military, why can the carriers leave it alone?
    Donald K> Johnston

  3. William Shirey says:

    His Net Neutrality promise was one of the main reasons I voted for Obama. If he falters on his promise he will be a ONE TERM president because I and many other voters will remember his action in 2012. Net Neutrality GUARANTEES OUR FIRST AMENDMENT RIGHTS TO FREEDOM OF SPEECH AND FREEDOM OF THE PRESS. Net Neutrality IS A MUST if our democracy is to remain intact. If Obama doesn’t stand up for Net Neutrality, his legacy as President will be equal to that of his immediate predacessor. Big Telcoms wish to throttle the voice of the majority of the people so that only their lies and misdirestions are heard. If the same lie is repeated a million times does it become the truth? An OPEN INTERNET DEMANDS HONESTY and thats why Big Telcoms wish to regulate it for their OWN AGENDA and if We the People disagree with their agenda all they have to do is DELETE ANY COMMENTS they find arbitrary or embarassing BEFORE THE FINAL EDIT and the people will NEVER KNOW WHATS BEEN CENSORED.Thats not democracy, THAT’S FASCISM.

  4. Sara Wedeman says:

    Thank you for this David. Talk is cheap, but at the end of the day, what really matters is what one does (or fails to do).

  5. Barbara Esbin says:

    “The FCC’s authority to classify the Internet as an Information Service rather than a Telecommunications Service is the basis of the Appeals Court ruling.” This is incorrect. The basis of the D.C. Circuit’s decision in Comcast v. FCC is whether the FCC may regulate the network management practices of Internet service providers under its ancillary jurisdiction. That doctrine was the basis of the ruling, not whether the FCC had correctly classified the service under the Act in the first place. The service classification is part of the analysis under ancillary jurisdiction, but it is not the whole enchilada.

  6. Brett Glass says:

    Clearly, Cecilia Kang — Google’s reporter at the Washington Post — is working with Google lobbying groups Free Press, Public Knowledge, Media Access Project, and the New America Foundation to stir up the rabble in an attempt to manipulate the FCC into doing Google’s bidding. The fact, as I’ve stated before, is that “network neutrality” regulation would do tremendous harm to the country and to consumers. The big winner would be Google, which — having tied the hands of ISPs — would have virtually total control over the future evolution of the Internet. Add this to its monopolies on Internet search, search advertising, banner advertising, and video, and it’d be sitting pretty.

    There’s an eye in the flointment, however. Even if broadband TRANSPORT were regulated under Title II of the Telecomm Act (which would be destructive enough; imagine regulating airplanes with rules meant for horses and buggies), Internet service would still be an “information service” and the FCC would still lack authority to regulate it or impose “network neutrality” rules. So, such a “victory” would be hollow indeed.

  7. Sara Wedeman says:

    Brett, don’t you mean there’s a fly in the ointment?

  8. Internet Statistics by Alex Goldman » Blog Archive » FCC Seeks Third Way for Internet Regulation says:

    [...] attempt to abandon Obama campaign promises with regard to net neutrality made the FCC of Monday (Obama Abandons Internet Promise) seem very different from the FCC of today (Obama Abandons . . . maybe not so much . . [...]

  9. Brett Glass says:

    Just a spittle loonerism there. ;-)