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Net Neutrality Will Be Saved Only If Citizens Raise an Outcry

John Nichols

06/05/2014

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When Barack Obama was running for president in 2007, he earned a great deal of credibility with tech-savvy voters by expressing support for net neutrality that was rooted in an understanding that this issue raises essential questions about the future of open, free and democratic communications in America.

Obama “got” that net neutrality represented an Internet-age equivalent of the First Amendment—a guarantee of equal treatment for all content, as opposed to special rights to speed and quality of service for the powerful business and political elites that can buy an advantage.

Asked whether he thought the Federal Communications Commission and Congress needed to preserve the Internet as we know it, the senator from Illinois said, “The answer is ‘yes.’ I am a strong supporter of net neutrality.”

“What you’ve been seeing is some lobbying that says that the servers and the various portals through which you’re getting information over the Internet should be able to be gatekeepers and to charge different rates to different Web sites,” explained Obama, who warned that with such a change in standards “you could get much better quality from the Fox News site and you’d be getting rotten service from the mom and pop sites.”

Obama’s bottom line: “That I think destroys one of the best things about the Internet—which is that there is this incredible equality there.”

Candidate Obama was exactly right.

So was President Obama when, in 2010, the White House declared that “President Obama is strongly committed to net neutrality in order to keep an open Internet that fosters investment, innovation, consumer choice, and free speech.”

And President Obama certainly sounded right in January 2014, when he said, “I have been a strong supporter of net neutrality. The new commissioner of the FCC, Tom Wheeler, whom I appointed, I know is a strong supporter of net neutrality.”

The president expressed that confidence in Wheeler, even as concerns were raised about an appointee who had previously worked as a cable and wireless industry lobbyist.

Now, barely three months after the president identified him as “a strong supporter of net neutrality,” Wheeler has rolled out a proposal that our most digitally engaged newspaper, The Guardian, delicately suggests would “axe-murder Net Neutrality.”

According to Los Angeles Times tech writer Jim Puzzanghera, the plan “would allow Internet service providers to charge companies for faster delivery of their content.”

Gabe Rottman, an American Civil Liberties Union legislative counsel and policy advisor who focuses on First Amendment issues, correctly explains, “If the FCC embraces this reported reversal in its stance toward net neutrality, barriers to innovation will rise, the marketplace of ideas on the Internet will be constrained, and consumers will ultimately pay the price.”

Wheeler tried to soften the blow by claiming that criticisms from public-interest groups, based on initial reports about his plan, were “flat-out wrong.” “There is no ‘turnaround in policy,’” Wheeler announced. “The same rules will apply to all Internet content. As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted.”

But, after reviewing “the outlines of the proposal released by [Wheeler’s] office on Wednesday,” Puzzanghera’s “Tech Now” report explained that:

Although the plan would reinstate the agency’s prohibition against Internet providers from blocking any legal content, it would allow phone and cable companies to charge Netflix and other companies to put their content in a super-fast lane on the information superhighway.

The plan appears to violate a basic principle of net neutrality that all similar content should be treated equally.

Tim Karr, of the media reform group Free Press, says: “All evidence suggests that Wheeler’s proposal is a betrayal of Obama and of the millions of people who have called on the FCC to put in place strong and enforceable net neutrality protections.”

The Future of Music Coalition’s Casey Rae argues that any FCC initiative that establishes a model for speeding up delivery of content for paying customers is “not ‘net neutrality.’”

The risk, says Rae is that, “the Internet in America will now be carved into a fast lane for well-heeled corporations and a dirt road for everyone else.”

“These proposed rules not only don’t go far enough to safeguard consumers, they actively marginalize smaller and independent voices,” explains Rae, who says, “Artists, developers, culture workers, media-makers, nonprofit organizations, community, civic and church groups must tell the FCC that this isn’t good enough. We need real rules of the road for ISPs to guarantee that creative expression and entrepreneurship can thrive in the online ecosystem. FMC and our allies look forward to making this case in the upcoming rulemaking after May 15.”

Rae’s point is an important one. The process is just beginning. It can be influenced by content creators, consumers and citizen activists who understand that in this age of digital communications a broken Internet will lead to a broken democracy. It can even be influenced by the president and members of Congress, who ought to speak up, loudly, in favor of the right approach to net neutrality.

There are two simple steps to take:

1. Recognize that there is a right response to court rulings that have rejected the complex and ill-thought approaches that the FCC has up to now taken with regard to net neutrality. The right response is to reclassify broadband Internet access as a telecommunications service that can be regulated in the public interest.

When the FCC’s clumsy previous attempt at establishing net neutrality protections was rejected in January by the US District Court of Appeals for the District of Columbia, the court did not say that the commission lacked regulatory authority—simply that it needed a better approach. As David Sohn, general legal counsel at the Center for Democracy & Technology, notes, the court opinion laid out “exactly how the FCC essentially tied its own hands in the case, and makes it clear that the FCC has the power to fix the problem.”

“The Court upheld the FCC’s general authority to issue rules aimed at spurring broadband deployment, and accepted the basic policy rationale for Internet neutrality as articulated by the FCC,” explains Sohn. “The arguments in favor of Internet neutrality are as strong as ever, but prior FCC decisions on how to treat broadband have painted the agency into a corner. Those decisions are not set in stone, however, and the ball is now back in the FCC’s court. The FCC should reconsider its classification of broadband Internet access and reestablish its authority to enact necessary safeguards for Internet openness.”

The approach that Wheeler is now proposing continues down the wrong course, and actually veers into even more dangerous territory with its outline for a pay-to-play "fast lane" on the Internet. But this proposal can be altered or rejected by the full commission. In other words, the reclassification option can still be pursued.

2. Recognize that this is the time to send a clear signal of support for genuine net neutrality. The FCC has listened in the past when a public outcry has been raised, on media ownership issues, diversity issues and Internet access issues. Wheeler is a new chairman. It’s vital to communicate to him, and to the other members of the commission that President Obama was right when he said that establishing “fast lanes” on the Internet “destroys one of the best things about the Internet—which is that there is this incredible equality there.”

Dozens of public interest groups, ranging from the American Civil Liberties Union to the Government Accountability Project to the PEN American Center to Fairness & Accuracy In Reporting and the National Hispanic Media Coalition have urged the FCC to do the right thing. The “Save the Internet” coalition has a track record of rapidly mobilizing Americans to thwart wrongheaded moves by the FCC.

They’re already up and at it, with a petition urging Wheeler and the FCC to “scrap” approaches that won’t work and “restore the principle of online nondiscrimination by reclassifying broadband as a telecommunications service.”

Vermont Senator Bernie Sanders says, “Our free and open Internet has made invaluable contributions to democracy both here in the United States and around the world. Whether you are rich, poor, young or old, the Internet allows all people to seek out information and communicate globally. We must not turn over our democracy to the highest bidder.”

Sanders is right about that—especially when he recognizes the vital link between technology and democracy. A free and open Internet is essential to modern democracy. But that freedom and openness will be maintained only if Americans use their great democratic voice to demand it.

There is a way to save net neutrality. And if ever there was a time for citizens to urge the FCC to go the right way, this is it.

- John Nichols is Washington correspondent for The Nation.

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