FCC's net neutrality plan spurs debate on how to keep open Internet

FCC Chairman Tom Wheeler proposed to reclassify Internet service providers in the same legal category as more highly regulated phone companies to give the agency the authority to promulgate net neutrality rules.

Feb. 25, 2015 3:05 AM PT

Reporting from washington — For the Internet, which has been a revolutionizing force in business, politics and the very nature of social interaction, change is not good.

It’s coming, regardless. The Federal Communications Commission is expected to approve landmark regulations Thursday to try to ensure the uninhibited flow of online traffic — its third and most far-reaching attempt at creating so-called net neutrality rules.

The highly charged debate springs surprisingly from nearly universal agreement that the Internet is fine just the way it is. The long-simmering hang-up has been how to keep it that way.

The issue can be framed like this: Is competition in a fast-consolidating industry enough to prevent cable and phone companies from abusing their power as network owners? Or does the federal government need to step in with new oversight, which risks hindering investment and slowing innovation?

The answer may boil down to which unpopular group the public trusts to be the guardians of the online world — telecom giants or Washington bureaucrats.

“If you’re left of center, you tend to distrust companies. If you’re right of center, you tend to distrust government,” said Robert McDowell, a former Republican member of the FCC. “That is where the net neutrality debate has fallen.”

Each side argues that it is trying to preserve the future of the Internet by ensuring that it continues to be the same driver of innovation and economic growth.

“If you care about Skyping with your grandma or sending email or watching something on Vimeo or sharing a meme on Tumblr … the reason they exist is [because] we’ve had an open, neutral Internet where anybody could create anything and you could use it,” said Marvin Ammori, an affiliate scholar at Stanford Law School’s Center for Internet and Society.

Ammori has been among the public interest advocates pushing the FCC for years to take bold steps to regulate Internet traffic to prevent abuses by broadband providers.

In 2004, the agency outlined four net neutrality principles for preserving what it called Internet freedom: the ability to access any legal content, to use any application, to attach any personal device and to obtain basic information about Internet service.

Turning those principles into enforceable regulations has been difficult. The agency enacted rules twice, but both times they were tossed out by federal judges after challenges from broadband providers that the agency didn’t have the authority it cited to make those rules.

The most recent ruling came in January 2014, when a federal appeals court said the FCC overstepped its authority by attempting to treat Internet service providers as more highly regulated utilities even though the agency hadn’t classified them that way.

After a long review and much prodding from protesters, Internet content firms, a flood of public comments and even a rare pitch to an independent agency by President Obama, FCC Chairman Tom Wheeler decided to take the court’s hint.

He proposed to reclassify Internet service providers in the same legal category as more highly regulated phone companies to give the FCC the authority to promulgate net neutrality rules.

Wheeler, a Democrat and former cable TV and cellphone industry lobbyist, said the move to impose utility-like oversight for broadband service is designed “to assure there are basic ground rules and a referee on the field to enforce them.”

“In general, if an action hurts consumers, competition or innovation, the FCC will have the authority to throw the flag,” he said in a speech in Colorado this month.

The net neutrality rules would prohibit broadband providers — wired and wireless — from speeding up, slowing down or blocking delivery of any legal online content or service.

Wheeler has promised a modernized approach in which the FCC would ignore much of its regulatory power, particularly the ability to regulate rates, to “preserve the Internet as an open platform for innovation and free expression.”

Democrats have a three-to-two FCC majority and are expected to approve the plan over strong objections from Republicans and vows of lawsuits from the telecom industry.

“In my view, net neutrality rules are a solution in search of a problem,” said Ajit Pai, one of the agency’s two Republican commissioners. “I foresee adverse consequences to the entire Internet economy.”

The FCC is preparing to inject itself into an online ecosystem that is working fine and the agency could mess it up by opening the door to a slew of new regulations, opponents said.

“You don’t want your doctor to start writing prescriptions when you don’t even know what the illness is or even if there is an illness,” said McDowell, who opposed net neutrality regulations when he was an agency commissioner. “That’s what the FCC is doing right now.”

Sen. Ted Cruz (R-Texas) dubbed Wheeler’s plan “Obamacare for the Internet” in an attempt to fire up people who oppose expanding the reach of government.

Although Wheeler said the FCC would lightly regulate broadband service, the agency would have the authority to be heavy-handed, said Jeffrey Eisenach, director of the Center for Internet, Communications and Technology Policy at the conservative-leaning American Enterprise Institute.

Eisenach predicted that public interest groups would push the FCC to take ever-stronger steps, such as regulating rates as it does for conventional phone service.

“They’re going to have petitions up the wazoo demanding they do that, and they can’t just ignore them,” he said. “What you have here is the triumph of a worldview that believes the biggest threat to free speech is private corporations and private power and the remedy to that threat is the government.”

Supporters of Wheeler’s plan said AT&T Inc., Comcast Corp. and other broadband providers are the real threat because without tough government oversight those providers could determine which websites get to deliver content faster to consumers.

“Our doomsday scenario is they destroy the Internet,” Ammori said of telecom companies. “Their doomsday scenario is people are going to try to get Internet service providers to charge consumers less.”

Michael Copps, a former Democratic member of the FCC who pushed the agency for years to take a tougher approach to net neutrality, understands that many people don’t trust the government to get it right.

But although no regulatory plan is perfect, it’s better than leaving the Internet unguarded, said Copps, a special advisor to public interest group Common Cause.

“The bigger danger by far is turning it all over to a few Internet service providers and telecommunications giants, who are going to have the final say over how this communications technology that we all use is going to evolve,” he said.

“I’d rather put my faith in enlightened government oversight to guard against that kind of gatekeeper control and concentration.”

[email protected]