We’ve known all along that the Clear Skies Act, the Healthy Forests Initiative and the Open Internet Order would lead to more air pollution, more pillage of national forests and a pwned, corporatized, monetized Internet. After all, the FCC’s Open Internet Order was born of a compromise between Google and Verizon; elephants danced and the grass roots got trampled.

In 2009 and 2010 — as FCC Chairman Genachowski deked and ducked and tried not to offend anybody powerful — it was clear to all, especially to the biggest telcos and cablecos, that if the FCC were to classify Internet access as a Title 2 telecommunications service, this would (a) solve the big problems that the phrase “Network Neutrality” was invented to describe, would (b) provide strong legal grounds against challenges, and would (c) be consistent with 500 years of common law and a deep corpus of case law. Nope, we could not have that. It was better to have a weak compromise, full of exceptions, that was bound to be overturned in court. Here’s my own bitter prognostication from December 2010.

Now that the DC Appeals Court has struck down the FCC’s 2010 order [court decision here], now is the time to demand that the FCC do what it should have done in the first place. It should classify Internet access as a Title 2 Telecommunications Service. The precedents for doing this are strong. The bigcos will be unanimous in their hatred for it; we should welcome their hatred.

The Internet should be for everybody. It should not be narrowly monetized, productized and marketed to benefit the already-rich and the already-powerful. Reclassification of Internet access to be a Title 2 Telecommunications Service could do this.

Chairman Wheeler. Special Counsel for External Affairs Sohn. Are you listening?

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4 Comments

  1. US federal appeals court rejects net neutrality | ARTS & FARCES internet says:

    […] be in this mess. It’s going to be much more difficult now, four or five years later. As David Isenberg, writing for isen.blog […]

  2. Steve Stroh says:

    David – welcome back to blogging. We missed your thought leadership. I didn’t know, and didn’t follow Aaron Swartz, but I’ve keenly felt the death of other tech leaders that have inspired me, so I think I can imagine how debilitating Aaron’s death was for you.

    I’m sad with today’s news of that the plug was finally pulled on the comatose concept of Net Neutrality. It was a long and lingering death, but I knew it would eventually come to this, after witnessing the unrelenting, whatever-resources-it-took assault by the telcos on the details of the 1996 Telecom Reform Act that disadvantaged them.

    I was also saddened that you didn’t think that F2C 2014 conference would be significant enough to make a difference. I think you’re right, but for a different reason. While I think the goals, and accomplishments of the F2C conferences were laudable, I felt that the F2C conferences never really went quite far enough.

    Where I parted company with the technorati and policy wonks that you assembled at F2C conferences was that they thought that policy could do the job of assuring a free and open Internet. I didn’t think that was going to be enough, for the reasons stated above. I was always confident that the telcos, in this current dysfunctional political climate, would win the policy battles and eventually defeat Network Neutrality defined as a policy. And now they have.

    What I tried to explain by my participation at the F2C conferences I attended was that it was possible to assure Network Neutrality by building more networks. My specialization was (writing about others) building wireless networks, and pretty much to a person, those attending F2C conferences gave the concept of building independent Broadband Wireless Internet Access networks lip service at best. They wanted policy to enforce the building of “big” wireline networks – fiber, but always paid for by someone else, like a telco.

    The concept of forcing a telco to provide for the public good, and expecting them to be content with this, when they have the power to change public policy, reminds me of the fable of the Scorpion and the Frog. It is the NATURE of a telco to be able to force itself into the middle of a communication, at great profit for itself. Telcos tolerated the Internet operating in an egalitarian way only as long as they had to. As corporations with roots extending back more than a century, they take the long view, and they play the long game, and especially, invest and plan for the long game. And thus, they’ve won.

    That is, they’ve won THIS battle.

    But they aren’t structurally positioned to win the war of what we know to be the real Internet – a loosely connected federation of networks. But we’ll never be able to “teach” telcos (and cablecos) that to embrace an open Internet will be good for them.

    So, in what is probably the proudest tradition of the real Internet, those of us that care, must treat “censorship” (which is the way I see a lack of Network Neutrality) by “Internet providers” as damage and simply “route around it”. IE, bypass the stupid.

    That is a longer fight, some of which we’ve seen already. The metro fiber not-for-profits, like those you’ve highlighted at previous F2C conferences are one part of the fight. But also, and especially, the small, private, and most importantly, privately FUNDED Wireless Internet Service Providers (WISPs). They are network neutral (well, most of them – some of them do lapse into stupidity) because that’s what their customers expect. More importantly, if they don’t observe Network Neutrality, they’ll LOSE their customers to a competitor that DOES.

    You see, most WISPs build their networks with their OWN money, so they’re REALLY tough to influence. They use the “junk” spectrum to build a service that most don’t think possible, using fantastically cost-effective equipment that most don’t know exist, to build a service that most people cannot believe exists, or even can work at all. But they’re out there, all over the place. Amazingly, their numbers are increasing! Likely even some in Cape Cod. In their own
    way, they’re doing their bit to insure Network Neutrality (though many would threaten you for suggesting that’s a deliberate goal of theirs – that’s how fiercely independent they are).

    So, is the open Internet dead with the death of FCC-enforced Network Neutrality? No, definitely not. Imagine what happens when people start really CARING what, where, and who their Internet service comes from. Kind of like the “green power” concept. If I was a merchant in Cape Cod, especially a techie merchant, I would make a point of moving my website to a host that is actually IN Cape Cod, that is connected directly to all of the local ISPs, so if you want to see the website from a local ISP, your packets are staying within the community. Ditto
    for VOIP services over the local ISPs, etc.

    So, I return to the suggestion, for you to reconsider F2C as not being about “policy”, but rather that the REAL Freedom to Connect is the ability to build independent networks and bypass the stupidity of the telcos and cablecos. Most won’t care. But some will. There are some real entrepreneurs out there who are doing it now, both wireless and fiber. There will be more. There will be some setbacks, as they are bought up (especially fiber) by telcos and cablecos, and some fail.

    But the tools ARE out there to BUILD independent networks, and so I think the real Freedom to Connect is that capability, and thus create our own Network Neutrality.

  3. Net Neutrality Ruling - The Creative Librarian says:

    […] is about. Who Killed Net Neutrality? : The New Yorker has a review of how we got to this point. After The Open Internet Order, Reclassification! finds a silver lining in the cloud. ‘A FEMA-level fail’: The law professor who coined ‘net […]