Ground Report

 by Matthew L. Schafer

Note: This report originally appeared at the media website LWR.

On Tuesday, a 3-2 vote at Federal Communications Commission passed a “Net Neutrality Order” providing “basic rules of the road to preserve the open Internet as a platform for innovation, investment, competition and free expression.”  Simply, net neutrality is the principle that all producers and consumers should have equal access to “the pipes” at the same speed and cost as everyone else.  The new rules, which would not apply to mobile broadband, immediately received criticism from both the Republicans and Democrats alike.

“On one end of the spectrum, there are those who say government should do nothing at all, [and] on the other end of the spectrum are those who would adopt a set of detailed and rigid regulations,” FCC Chairman Julius Genachowski said today.  “I reject both extremes in favor of a strong and sensible framework – one that protects Internet freedom and openness and promotes robust innovation and investment.”

The pushback from the left came from media reform organizations, including the Media Access Project (MAP) and Free Press.  MAP recently argued that the rules  leave loopholes and create regulatory uncertainty.  MAP, as with many other media reform organizations, advocated for the reclassification of the Internet as Title II or telecommunications service.  Reclassification would have allowed the FCC more power to regulate traffic throttling and other Internet service provider abuses.

“We are deeply disappointed that this Commission appears to be moving forward with deeply flawed rules that don’t live up to the promises of the president or the FCC chairman to protect the free and open Internet,” Craig Aaron of Free Press said on Monday.  “This short-sighted decision is all too familiar to those who have watched the Obama administration and its appointees squander the opportunity for real change."

While supporters say the rules do take a step in the right direction in some aspects, others are near enraged by the rules failure to prevent pay-to-play access.  Without such protections, large companies—it is feared—will have priority over smaller independent companies and citizens.  The rules also fail to protect mobile broadband from prioritization, which some fear will lead to discrimination based on content—Commissioner Clyburn said today that she wished all the new rules extended to mobile broadband.

Despite the failings of the rules, the FCC did successfully manage to gain attention by their passage.  Senator Kay Bailey Hutchinson [R-TX] even threatened to cut off FCC funding, so the FCC would be unable to enforce the new rules of the road.  In an email to supporters today, Senator Al Franken said the plan “is not nearly strong enough to protect consumers or preserve the free and open Internet.”  Unsurprisingly, the divisions over the new rules fall according to party lines.

While it appears obvious that neither side in this debate received all of what they were hoping, its important to keep today’s decision in context:

• This does allow for paid prioritization.
• This does not allow government censorship.
• This does enforce–to some extent–net neutrality rules via broadband.
• This does not enforce net neutrality rules via mobile broadband.
• This is a first step towards protecting consumers.
• This is not the last step towards protecting consumers.

Commissioners Clyburn and Copps, two avid public interest supporters, both highlighted the nature of today’s Order: Compromise.  While many public interest groups, which felt the rules did not go far enough to protect consumers, were relying on one commissioner to join the two Republican commissioners in voting down the rule change, Clyburn and Copps both voted for the new rules.

“To be clear, we do not anchor ourselves on what I believe to be the best legal framework,” Commissioner Copps wrote.  “Nor have we crafted rules as strong as I would have liked.  But, with today’s action, we do nonetheless appear to steer ourselves back toward a better course.”