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What the FCC Did to Net Neutrality Today

BY Nancy Scola | Tuesday, December 21 2010

FCC Chair Julius Genachowski; March 2010 photo by wiredbike

Just a few moments ago, the U.S. Federal Communications Commission's five commissioners voted to approve a plan that was presented as a response to calls to preserve the free and open nature of the Internet. The final vote came down at three to two, and it was a party-line outcome: Chair Julius Genachowski was joined by his fellow Democrats Mignon Clyburn and Michael Copps in approving the order, though both has objections to parts of the proposal. Republican commissioners Meredith Attwell Baker and Robert McDowell voted against the suite of proposed rules, with Baker capturing the tone of both her and her fellow minority commissioner's stance on this latest move in the on-going battles over net neutrality when she opened her remarks by saying, "I really, really, really dissent."

The net neutrality debate continues, with Congress weighing in on what the FCC had done on the other side of town before the commissioners' microphones were even cold, as Politico's Kim Hart and Tony Romm report. And the Center for Democracy and Technology Executive Director Leslie Harris is probably spot on in framing this moment, as significant as it might look this morning, as not "the end of the Internet neutrality debate," but rather, "just the end of the beginning."

But a few aspects of what went down at the U.S.'s main communications regulatory agency jump out and seem particularly relevant for us here.

The first is that, well, we don't actually know just what it is that the FCC did today, really. The commission's order is rumored to be 90 pages or so long, but there's no public copy available as of yet. During today's meeting, Commissioner McDowell complained that his staff, "received the current draft at 11:42 p.m. last night." Baker put her receipt of the draft, something the commission has been working on for many long months, at 11:30 p.m. last night. What we do know about the proposal comes from Chair Genachowski's remarks, and the opening presentation by members of the FCC's bureau leadership. That sketch of the rules echoed what Genachowski has said about his approach in the past, and it comes in three parts: transparency about what fixed broadband providers are doing to manage traffic on their network (and yes, the irony is an obvious one), a ban on traffic blocking, and a prohibition against network providers discriminating against certain sources of online traffic, such as the video service that happens to compete with their own.

Except, that is, when it comes to mobile broadband, the way that a growing number of Americans access the Internet today. That's our second focus, and where what the Federal Communications Commission has approved gets particularly fuzzy. Citing the "unique  technical issues involving spectrum and mobile networks, the stage and rate of innovation in mobile broadband; and market structure," Genachowski argued that, beyond a simple no-blocking ban, applying the same restrictions on blocking and discrimination he'd proposed for wireline broadband to wireless broadband would be foolhardy. Nowhere in Genachowski's remarks, though, did we get much in the way of insight into how exactly that wired/wireless distinction works in practice. It doesn't seem like a particularly academic question when you consider that the smartphones in millions of Americans pockets switch from WiFi to 3G connectivity without the phone owner noticing much.

Third, Genachowski was clearly annoyed with the a number of the participants in the neutrality debate. Taking a page from President Obama, whom he served as an advisor during his presidential campaign, he directed fire at free-market conservatives and/or libertarians and reform advocates like those at Free Press alike (though no one by name). The debate over net neutrality has been a fierce one, and has raged online and off. "Despite a shared allegiance to the Internet as an open platform," said Genachowski, "there has been disagreement about the role of government in preserving Internet freedom and openness. On one end of the spectrum, there are those who say government should do nothing at all on open Internet. On the other end of the spectrum are those who would adopt extensive, detailed and rigid regulations."

"Now," said Genachowski, "that's chutzpah." Perhaps, but it also seems to a testament to the fact that advocates on every side of the issue have found ways to organizing and get their voices heard in the process, often using something called the Internet to do it.

More on that point, Genachowski actually seemed to take a fair amount of satisfaction, if not pleasure, in pleasing just about no one involved in this whole debate. To be sure, everyone sitting with him at the commissioner's table found something to dislike in the proposal. "I would have extended all of the fixed rules to mobile," said Clyburn, citing the high rates of mobile Internet use in African-American communities in particular. "We've turned prioritization into a dirty word," complained Baker, arguing that traffic shaping makes sense on an Internet as robust as ours. Copps held that Genachowski's approach to mobile didn't seem to be all that rooted in reality, saying "The Internet is the Internet, no matter how you access it." As for McDowell, he argued that "The FCC is...not...Congress," replete with pauses for dramatic effect; he went on to complain that the agency which he helps to lead looked guilty of engaging in "regulatory vigilantism."

Finally, a fourth observation, and that has do with the context in which the whole neutrality debate of the last few years has taken place.

Genachowski has taken hits for kowtowing to the big telecom providers throughout this whole process. And, for sure, some of the provisions in this proposal do seem designed to be responsive to industry worries that don't seem to have actually been justified in the record. But looking at this whole debate, it starts to look much bigger than Genachowski, and much like we've reached the point to where any sort of meaningful incursion onto the corporate right to influence and even dominate the Internet would seem like a downright radical act of political bravery. That's a reality of the U.S. communications landscape, circa 2010. That we're debating just how powerful a say telecom company's should have over how the Internet works is a sign of how the Internet has, as a medium, shifted since its earlier days.

Writing for Wired in 2005, Kevin Kelly recalled how one of the early debates in the Internet's evolution was whether or not to allow any sort of commerce at all on the activity layer of the Internet. (That is, e-commerce websites and the like.) "It's hard to believe now," writes Kelly, "but until 1991, commercial enterprise on the Internet was strictly prohibited." The idea that the Internet should be so pure probably seems laughable to many of us now. Watching the net neutrality process unfold at the FCC and on Capitol Hill over the last many months has made clear that the reality is that, very quickly, corporate interests have acquired such a level of influence over the evolution of the Internet where the debate can sometimes seem to be far more concerned with their interests than the public interest.