February 7,
2015 JOE NOCERA
In 2009,
President Obama nominated Julius Genachowski, a trusted friend who had acted as
candidate Obama's technology adviser, to be the chairman of the Federal
Communications Commission. They both firmly believed in the importance of ''net
neutrality,'' in which Internet service providers, or I.S.P.s, would not be
able to give one website an advantage over another, or allow companies to pay
to get into a ''fast lane'' ahead of competitors. That was the surest way to
allow innovation to flourish, they believed.
To Genachowski
and his staff, creating net-neutrality protections meant reclassifying
components of broadband Internet service from lightly regulated ''information
services'' to more highly regulated ''telecommunications services.'' This would
subject I.S.P.s like Comcast and Verizon to certain ''common carrier''
regulations under Title II of the 1934 Communications Act. But, according to
The Wall Street Journal, Larry Summers, who was then Obama's director of the
National Economic Council, blocked this effort, fearful of ''overly
heavy-handed approaches to net neutrality'' that could be detrimental to the
economy.
So instead, in
December 2010, the F.C.C. unveiled net-neutrality protections even while
retaining the old ''information services'' classification. Many F.C.C. staff
members knew this was a riskier approach; after all, an earlier attempt by the
agency to censure Comcast for violating net-neutrality principles had been
vacated by the courts -- on the grounds that the F.C.C. lacked the proper
authority. Sure enough, in January 2014, the court ruled that while the F.C.C.
had general authority to regulate Internet traffic, it couldn't impose tougher
common-carrier regulation without labeling the service providers common
carriers.
Is it any
wonder that Tom Wheeler, who succeeded Genachowski as chairman of the F.C.C.,
announced this week that he was proposing to reclassify broadband Internet
services as telecommunications services? What choice did Wheeler have? ''Title
II is just a tool to get enforceable rules to protect end users,'' said Michael
Beckerman, the president of the Internet Association, a trade group consisting
of big Internet companies. Given the prior court decisions, that is really the
only tool the government had left.
Is it truly
necessary to have government-mandated rules to ensure net neutrality? Yes. One
argument made by opponents of Title II classification is that we essentially
have had net neutrality all along, so why does the government need to get
involved? ''There is no market for paid prioritization,'' said Berin Szoka, the
president of TechFreedom, which vehemently opposes the reclassification.
But this is
not necessarily because of the workings of the market. For starters, the
fastest broadband providers are mostly cable companies, which are quasi
monopolies. As part of its deal in buying NBCUniversal, Comcast agreed to
Genachowski's net neutrality rules until 2018, regardless of the eventual court
decision.
But who's to
say what will happen after that? A good dose of competition might help, but
other than Google Fiber -- which only exists at this point in three cities --
it is hard to see where that is going to come from. The way things are now,
most people only have two options: their cable company or their phone company.
That's not enough.
Indeed, a
persuasive argument can be made that the previous attempts to create
net-neutrality rules played an important role in preventing the broadband
providers from, say, creating Internet fast lanes. After all, it took more than
three years from the time Genachowski proposed the new net-neutrality rules to
the time the court of appeals struck them down. Between those rules and the
Comcast agreement, net neutrality was essentially government-mandated.
Another
objection the broadband providers make is that the 1934 Communications Act is
hardly the right vehicle to regulate the modern Internet. To allay these fears,
Wheeler has said he would ''forebear'' those old regulations -- such as price
regulation -- that don't make sense for our era. But, opponents argue, what is
to prevent a future F.C.C. chairman from imposing price regulation? Surely,
though, the same can be asked of the broadband providers: What is to prevent
them from someday violating net neutrality if there are no rules of the road?
This strikes me as by far the more credible worry.
How to
classify Internet services shouldn't even be a question, and it wasn't before
2002. That's when Michael Powell, who was then the F.C.C. chairman -- and is
now the chief lobbyist for the cable industry -- decided he wanted Internet
services to be classified as an information service. He essentially commanded
the F.C.C. to come up with a rationale for doing so, said Barbara Cherry, a
professor at Indiana University, Bloomington, and a former F.C.C. staff member.
What Wheeler is doing is not a radical step, she said. ''They were
classified as telecommunications services because they were telecommunications
services.
''Classifying
them as information services exclusively,'' she added, ''was the real radical
decision.''
