Net Neutrality: Did We "Win" A Battle, Only To Possibly Lose The War?
February 27, 2015
Friends don't understand why I'm not jumping for joy after the FCC's "Network Neutrality" decision yesterday. After all, they've been hearing me passionately argue for years about how we need to wake up and pay attention to the choices we have to make for the future of the Internet. They've heard me rail against the Internet access providers here in the US who seek to be the new gatekeepers and require people to ask permission or pay to get new services online. They've heard me strongly say that "The Internet Way" is for services to be "decentralized and distributed". They've seen me write about "permissionless innovation" and the dangers we could face. In fact, I'll be in Austin, TX, next week speaking at the NTEN conference about "Our Choice of Internet Futures".
They know that I joined the Internet Society in 2011 specifically to fight for the open Internet - and that a large goal in my life is to be one of the voices helping advocate for the open Internet and ensuring that my children have the same "Internet of opportunity" that I've been able to have. Friends could hear in the closing words of FCC Chairman Tom Wheeler many of the same phrases and words that I have been so passionately advocating about over many years.
Why, then, am I not dancing in the streets?
Two reasons.
1. What Is In The FCC Order? - Seemingly lost in all the media euphoria yesterday was a basic fact:
WE DON'T KNOW WHAT THE FCC ACTUALLY VOTED ON!
No one outside the FCC Commissioners and their staffs have seen the actual "Order" that the FCC voted on yesterday. Sure, we've heard all the lofty rhetoric and seen the summaries... but the rumors are that the actual document is over 300 pages and full of details.
Perhaps I’m just cynical, but the telecommunications industry in the United States employs hundreds of lawyers in Washington, DC, to influence and shape legislation and regulations in ways that benefit the telecom industry - and they've been doing so for over 100 years. And so while some of the companies may line up to file lawsuits against this FCC Order, odds are very good that their lobbyists and specialists have been hard at work attempting to shape these new regulations. I know some people at the FCC who are strong open Internet advocates and who I'm sure are trying to do the right thing... but I also know that 300+ pages has a whole lot of room for things to slip in.
My greatest fear is that when we actually see the full text, we may find that while there are some provisions we like, there are many others we don't - and there may be loopholes big enough to drive an entire residential network through.
"The other problem with rules is that they are brittle. Teams of lawyers will comb through whatever the FCC finally publishes and find any loopholes. There will be defined bright lines going forward and, make no mistake, ISPs will now get as close to those lines as they can. Whatever the Internet's rough consensus of "acceptable" was before, it's about to be thrown out in favor of a set of rules written by lawyers. Ironically, that may end up resulting in a regulated network that is less neutral than what we have today."
2. The Internet Is Not (or WAS Not) The Telephone Network - For so many years (in fact, decades for some people), we who are advocates of the open Internet have said at every chance we could one simple fact:
The Internet is NOT the telephone network. The Internet is NOT the PSTN (Public Switched Telephone Network).
And therefore the Internet should NOT be regulated like the traditional telecom network. The Internet should not fall under traditional telecom legislation and regulation. The Internet should not be regulated by the traditional telecom authorities and telecom regulators.
You cannot apply the old rules of telecom to the new world of the Internet.
The Internet is something new. The Internet is NOT telecom. Again and again and again and again we've all said this. Going back many, many years.
If you remember back to 2012 and the whole World Conference on International Telecommunication (WCIT) where so many were concerned that the International Telecommunications Union (ITU) was going to try to assert authority over the Internet, millions of us around the world rallied together to encourage our advocates in governments and organizations to say at WCIT that:
The Internet is NOT telecom. You cannot apply the old rules of telecom to the new world of the Internet.
And the outcome of WCIT was that the Internet was left alone and was recognized as being outside the scope of a treaty focused on telecommunications/telephony.
We all within the Internet have been saying this consisistently again and again:
The Internet is NOT telecom. Those are old rules - we are living in a new medium.
But guess what?
Yesterday's ruling by the FCC says (as best we understand it) - the Internet does fall under telecommunication regulations. Internet service providers should be classified under Title II just like all the other telecommunications service providers.
The FCC has effectively said:
The Internet IS telecom. The old rules DO apply.
I am not sure that is something to celebrate.
Many countries around the world have followed the lead of the US in treating the Internet lightly - but now that the FCC is effectively declaring the Internet to be like the telephone network, what is to stop those countries from doing the same? Indeed what is to prevent the ITU from now using this action to justify a larger role for it in regulating the Internet? After all, it's just telecom now.
I would have personally been far happier if the U.S. Congress had come up with new legislation that enshrined the principles of the open Internet in a new form of legislation that didn't carry with it all the legacy baggage of 100 years of telecom regulation. Yes, the legions of lawyers might have made it a hard fight, but it would have at least been something new - and at least we would have known more of what was actually being voted on. But that didn't happen - and so here we are today.
The "devil is in the details", as they say... and now we have to wait to see what exactly the FCC actually did yesterday. I'd like to be wrong and just be cynical and jaded. I fear that I am right.
I applaud FCC Chairman Wheeler for the lofty language he and the other commissioners used yesterday. It is a huge victory to have the heads of the FCC saying publicly so many of the things that so many of us have been advocating about for so many years. It is also a huge victory to have so many millions of people, not just in the US but all around the world, rise up and pay attention to these issues as a result of this whole issue here in the U.S. That is HUGE. We've needed something like this to wake people up to the choices we have to make.
But I do worry that in "winning" this victory yesterday, we may in fact be setting ourselves up to lose the larger war to keep the Internet open.
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