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The FCC, the Internet and Net Neutrality

The Federal Communications Commission chairman Tom Wheeler was bullish after the 3-2 vote of his commission reclassifying broadband as common carriers. Companies such as Verizon had made their mark in previous litigation, arguing that the FCC had bungled over imposing common carrier regulations on broadband providers. The issue was one of classification: as such providers were never common carriers to begin with – at least within the purview of the FCC – they could not be treated as such.

“We have addressed that issue, that is the underlying issue, that is the sine qua non of all of the debates we’ve had so far. That gives me great confidence in going forward.” How far the FCC was going to go in imposing the rules was an open question till Wheeler opted for the firmer route. A softer approach would have seemingly given the internet service providers the best means to deem what was appropriate for them, rather than the public. Thus, argued Wheeler, it was better to go for reclassifying broadband as a common carrier service under Title II of the Communications Act, effectively making it much like a telephone network.

Such regulatory action by the FCC gives the impression that net neutrality has, and will be preserved. The core idea – that information and services shall be available to all – supposedly lies at the heart of such rules. ISPs will not be allowed to “unreasonably interfere with or unreasonably disadvantage” consumer access to content and services. The FCC will be vested with the power to monitor the behaviour of broadband providers, keeping an eye on whether they create fast lanes for traffic or slower ones for commercially expedient reasons.

But the very fact that “rules” have been imposed outside the framework of either Congress or any other body of oversight suggests that something far more significant is at stake. Even more troubling was the cheery embrace of the FCC internet order in the absence of a full disclosure of the contents, which is set for next week. “Net Neutrality Wins” was a regular slogan, distributed through the Internet with viral enthusiasm. President Barack Obama spoke of the FCC decision as protecting “innovation” while creating “a level playing field for the next generation of entrepreneurs – and it wouldn’t have happened without Americans like you.”

The other side of the argument provides a meaner, distinctly less entrepreneurial picture. Freedom through regulation is seen as an oxymoronic bugbear. It represents, for Ron Paul, “the largest regulatory power grab in recent history” (Ron Paul Institute for Peace and Prosperity, Feb 26). The FCC measure is deemed bullying in its interventionism, smelling of a radical departure “from a decades-old bipartisan national policy of not regulating the Internet” while broadening “its regulation power without direction from Congress.” It creeps up, in the words of Michael Powell (CNet, Feb 27) on “edge providers, middle-mile operators, and backbone facilities that together make up the interconnected networks of the Internet.”

Powell was personally troubled, having himself laid out the Four Freedoms as FCC Chairman a decade prior. Before the Silicon Flatirons Symposium on “The Digital Broadband Migration” (Feb 8, 2004), Powell expounded on the usual pieties about “maintaining openness”, “empowering consumers” without regulating the holy creature termed “the Internet”. To that end, the first principle would involve consumer access to “their choice of legal content”. Consumers would “be able to run applications of their choice.” Consumers would be permitted to “attach any devices they choose to the connection in their homes.” Finally, there would be a freedom for consumers to “receive meaningful information regarding their service plans.”

For Powell, the current moves point towards an enlargement of FCC power, be it in terms of setting rates, or controlling business relationships with an intrusive hand. This is not in itself a terrible thing – business relationships can have an inexorable habit of moving towards profit over competence, consumer rejection over the share dividend. But there will be additional fees and costs associated with the new regime. Innovation may be stymied, with “garage startups”, a pet fantasy of the Silicon set, set to suffer.

The two dissenters against the FCC ruling had much to say about the forthcoming regulatory dystopia. Republican Ajit Pai, a member of the FCC, saw galactic tremors in the regulator move. Drawing on the skimpy book of notable Star Wars quotes, he referenced Emperor Palpatine: “Young fool… Only now, at the end, do you understand.” Forget, argues Pai, the innovative streak after the FCC’s calculated act of sabotage – permission to provide new services would have to go through the guardians of the Internet gate. Similarly, fellow FCC commissioner Mike O’Rielly lamented the permissions regime required for creating new services – one was better off becoming a “telecoms lawyer” instead of a dollar-starred business operator.

Both sides of this acrimonious debate miss the most vital point of all. Internet neutrality has always been the worshipped idol rather than flesh-and-blood being supporters of its principle claim it is. Having begun as a child of military fascination, neutrality was only ever the propagandistic handmaiden of promoters, a restless dream rather than pulsating reality. It has tripled up as weapon, tool of information, and object of restriction.

Distant, abstract and idealised, principles have been drafted, ideas floated, and suggestions made about how best to use the enormous, networked tool. But the very idea of “neutrality” where communications and investment come together, where information is key and the battle for access fundamental, suggest the fictional character of the effort.

Dandy it may be to speak about such “access” entitlements to Internet power, till one realises the range of forces at work seeking to limit and restrict its operations. They come from governments and their agencies. They come from companies and their subsidiaries. The Internet, in other words, is simply another territory of conflict, and one filled with fractious contenders vying for the shortest lived of primacies. Forget neutrality – it was never there to begin with. Just ask the lawyers getting their briefs ready for the next round of dragging litigation.

Dr. Binoy Kampmark lectures at RMIT University, Melbourne and was a Commonwealth Scholar at Selwyn College, Cambridge. Email: bkampmark@gmail.com

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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