Net Neutrality Threatened (Part II): New FCC Proposal Threatens Online Freedoms

21 December 2010

By Stephen Lendman 

Net Neutrality is a defining issue of our time. It's essential to keep the Internet free and open, letting users access all content without restrictions, limitations, or discrimination, maintaining an online level playing field for everyone.  

It's the essence of democratic free speech. Without it, the Internet will resemble cable TV, letting corporate predators game the system, deciding what web sites, content and applications are available at what price and speed. 

Giant cable and telecom companies are lobbying Congress and the FCC furiously for that right. A leaked September 2010 House Energy and Commerce Committee draft bill, if enacted, will let them establish higher-priced premium lanes (two Internets), effectively destroying Net Neutrality, compromising the last free and open space. New FCC provisions may do the same. More on that below. 

An October 2007 global measure, overriding national sovereignty, also threatens Net Neutrality, consumer privacy, and civil liberties. Called the Anti-Counterfeiting Trade Agreement (ACTA), secret negotiations seek to subvert them, ostensibly to protect copyrighted intellectual property, including films, photos, and songs. ACTA remains a work in progress, but developments going forward bear watching, especially if a global agreement is reached. 

New FCC Proposal Threatens Online Freedoms 

In early December, FCC Chairman Julius Genachowski proposed new regulations to be voted on December 21 saying: 

They're "consistent with President Obama's commitment to keep the Internet as it should be - open and free." As a candidate, he pledged it. As president, he consistently yielded to big money demands and appears ready now to surrender Net Neutrality. Genachowski's plan is a scheme to subvert it. More information on it can be accessed through the following link, but full details so far remain confidential: 

http://www.freepress.net/press-release/2010/12/1/fcc-peddling-fake-net-neutrality 

However, according to Save the Internet Coalition, his proposal: 

"is riddled with loopholes, and falls far short of what's necessary to prevent phone and cable companies from turning the Internet into cable TV: where they decide what moves fast, what moves slow, and whether they can price gouge you or not - a shiny jewel for companies like AT&T and Comcast." Specifically: 

-- it doesn't restore FCC authority over Internet service providers (ISPs); 

-- it lets cable and telecom companies split the Internet into fast and slow lanes; 

-- it lets ISPs charge content providers more for faster movement across the Internet than others; and 

-- it excludes wireless service, giving providers full control over customers with regard to pricing and conditions of operation. 

If Genachowski's proposal is adopted, Net Neutrality will be compromised. Cable and telecom giants will take control, and another Obama promise will be broken, sabotaging the last free and open space, subverting digital democracy for profit and the ability to block unwanted content. 

The 1934 Communications Act "regulat(ed) interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges...." It established the Federal Communications Commission (FCC) to "execute and enforce the provisions of this Act." 

Key to Genachowski's scheme is not classifying broadband Internet service under the Communications Act as a Type II telecommunications service that would subject it to tighter control. As a result, any FCC action may be legally challenged and will be if unfavorable to industry giants. In addition, as mentioned above, wireless service would be exempted from most new rules, a serious flaw given how fast it's becoming the most popular Internet access method of choice. 

Corporations and lobbyists responded favorably to Genachowski's plan. National Cable and Telecommunications Associations President Kyle McSlarrow said that previous negotiations had "produced a rough consensus on a number of points, which we believe are reflected in" his proposed rule changes. 

The CTIA Wireless Association added: 

"While we maintain our belief that any action in this area is unnecessary in the dynamic and rapidly evolving wireless environment, we understand and are pleased that the proposed rules have moved away from broad Title II regulation and toward a more tailored approach that recognizes the unique nature of wireless services." 

Telecommunications giant AT&T was practically jubilant saying: 

"While any final statement of position by AT&T must await a careful reading of the actual order and rules when issued, we are pleased that the FCC appears to be embracing a compromise solution that is sensitive to the dynamics of investment in a difficult economy and appears to avoid over-regulation." 

The five-member FCC is composed of three Democrats and two Republicans firmly opposed to regulation. If a majority backs Genachowski, Net Neutrality will be seriously jeopardized unless a groundswell of consumer opposition demands the administration and Congress prevent it. 

Report Saying New Rules Will Be Approved 

On December 15, Reuters headlined, "Approval of Internet traffic rules likely - analysts," saying: 

Genachowski's proposal will likely "be adopted without radically veering from a proposal unveiled earlier in the month, telecommunication policy analysts said on Wednesday." 

They expect Democrat commissioners Mignon Clyburn and Michael Copps will back Genachowski, believing "There aren't really any better options (despite) their preference for tougher rules." 

Another analyst agreed, saying at most minor modifications might be made but no major ones. December 21 is decision day. With little time left, it's crucial that consumers act, demanding Congress and the Obama administration preserve Net Neutrality and not allow Genachowski's proposal. 

Free Press.net Letter to the FCC  

On December 10, its five commissioners were sent a letter to "preserve the Open Internet, promote universal broadband access, and protect consumers in a concentrated (industry dominated) marketplace." Doing so is essential "for democratic participation, commerce and innovation." 

The FCC itself acknowledged that "The Internet's openness, and the transparency of its protocols, have been critical to its success." It's time to show it by enforcing Net Neutrality rules.  

"However, adopting limited protections while giving tacit approval to other harmful practices will not adequately preserve the open Internet. If the current draft Order is adopted without substantial changes, (ISPs) will be free to engage in a number of practices that harm consumers, stifle innovation and threaten to carve up the Internet in irreversible ways." 

Moreover, the Order is legally shaky, undermining not only Internet policy, but also "the Commission's entire broadband agenda." 

Free Press listed five specific problem areas: 

(1) Paid Prioritization: It's "the antithesis of openness. Any framework that does not prohibit such economic discrimination arrangements is not real Net Neutrality." Unless these practices are prohibited, ISPs will exploit the rules to their own advantage, effectively creating two Internets. 

(2) Adequate Protections for Wireless: Earlier, Genachowski himself said, "It is essential that the Internet itself remain open, however users reach it." Yet his proposal "leaves wireless users vulnerable to application blocking and discrimination....permanently enshrining Verizon and AT&T as the gatekeepers for all new uses of the wireless Web." 

(3) Loophole-Free Definitions: "The draft Order's definition of Broadband Internet Access Service could easily be exploited by ISPs seeking to evade or exempt themselves from the rules....Reasonable network management cannot be a loophole used by network operators to evade the rules." 

(4) Specialized Services Cannot Undermine the Open Internet: Last summer's announced Verizon-Google agreement "met with fierce public backlash in part because the deal would have allowed ISPs to split the public, open Internet into two 'pipes' (by) creat(ing) a carve-out from Net Neutrality rules for so-called 'managed' or 'specialized' services." If they're offered, they should be separate from Internet ones. 

(5) FCC Broadband Policy Must Be Based on Sound Legal Footing: Genachowski's proposal violates the US Court of Appeals for the DC Circuit's "rejection of the FCC's use of Title I ancillary authority in Comcast v. FCC." He wants new authority around the ruling, instead of protecting consumers and Net Neutrality as a fundamental right in new policy. 

Each of the above items demands fixing. Failure to do so "will jeopardize the Internet's historic openness and (will) undermine Obama's promise to deliver meaningful, real Network Neutrality protections." However, his failure to publicly endorse this shows another promise made may be broken, the latest in a long disturbing list affecting everything vital to working Americans. 

Nineteen supportive digital democracy organizations joined with Free Press in opposing Genachowski's proposal. It bears repeating. Otherwise, Net Neutrality will be irreparably compromised. 

A Final Comment 

On December 8, the Electronic Frontier Foundation's (EFF) Corynne McSherry cited the following Net Neutrality and Genachowski proposal concerns: 

-- fear that open-ended FCC Internet regulatory authority may "create barriers to entry for the next generation of....innovators," especially for wireless now getting much attention; 

-- whatever's suggested in principle, the devil lies in the details, "especially exceptions and loopholes for non-neutral behavior that may be" broad enough to subvert a larger proposal; and 

-- Genachowski's plan is especially worrisome; so far, it's details are confidential, "which itself doesn't bode well" and might be a dagger in the heart of Net Neutrality. 

When his proposal in full is released, it will be crucial to examine destructive loopholes and exemptions. For example, will "managed services" or "additional online services" subvert a free and open Internet? Will wireless exemptions be as bad? Will other provisions effectively gut Net Neutrality freedom so essential to preserve?  

After the December 21 FCC vote, we'll know more. But advance word suggests cable and telecom giants won at the expense of free speech, Net Neutrality, and the public interest. Stay tuned, and demand Congress act quickly during the lame duck session to reverse all destructive FCC provisions approved. It's our Internet and our choice about its management, functions and freedoms. They're too important to lose.

Three earlier articles addressed the issue, the most recent accessed through the following link: 

http://sjlendman.blogspot.com/2010/08/net-neutrality-threatened.html 

Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening. http://www.progressiveradionetwork.com/the-progressive-news-hour/.

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