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.