How the open Internet may die

You couldn’t say the crime is being committed by stealth. Quite the contrary: Tom Wheeler, the chairman of the Federal Communications Commission, is aiming to slay net neutrality in broad daylight. The murder weapon is a proposal to allow Internet service providers to charge content companies more for faster access to their subscribers.

Wheeler’s proposal, which is scheduled for a preliminary vote by the full FCC on May 15, has been assailed as a full-scale retreat from the open-Internet principle traditionally upheld by the commission, and explicitly supported by President Obama. Wheeler claims that he’s not backing away from net neutrality at all, and that assertions to the contrary are the product of “a great deal of misinformation.”

He’s blowing smoke. The critics are right. Wheeler’s proposal will turn the Internet as we know it into the private preserve of a handful of rich and powerful companies. It will make them richer and more powerful. And you’ll be getting the bill. If the commission votes for the proposal, it will be subject to months of public comments. But it could become law by the end of this year.

First, some background. “Net neutrality” is the principle that Internet service providers can’t discriminate — they can’t block websites or services, degrade the signal, slow traffic or, conversely, provide a fast lane.

That’s important be-

cause control over traffic flow gives ISPs tremendous power, especially those that control the last mile of access to end-users — cable operators such as Comcast and telecommunications firms such as Verizon and AT&T. Without regulation, they could force content providers to pay more for unrestricted transmission to their customers.

Wheeler wants to let that happen. His proposal would forbid ISPs to block any legal websites, but allow them to favor some traffic under “commercially reasonable” arrangements, to be reviewed by the FCC on a case-by-case basis. A recent Netflix deal to ensure that the company’s videos appear bright and sharp on Comcast customers’ iPads and TVs would probably fall well within the rules.

Allowing such arrangements would be a major retreat for the FCC. Wheeler contends that barring “commercially unreasonable” deals that “harm the Internet” or hurt consumers will be protection enough for the open Internet. His predecessor as chairman, Julius Genachowski, disagreed.

In 2010, Genachowski’s FCC explicitly rejected “the argument that only ‘anticompetitive’ discrimination” that harms consumers should be prohibited. That standard, the FCC held, “could allow discriminatory conduct that is contrary to the public interest.” The rules must be broader, the commission wrote — they must forbid ISPs to “pick winners and losers on the Internet.”

Yet that’s exactly what Wheeler’s proposal would allow.

What makes this plan especially frightening is that it arrives at the same time as another major threat to net neutrality on which the FCC must vote: the proposed merger of Comcast and Time Warner Cable, the nation’s two biggest Internet service providers.

These two proposals are the Scylla and Charybdis of the open Internet. It’s possible — remotely — that net neutrality could sail safely past one or the other; but the two together, if approved, would inevitably send net neutrality to the bottom of the sea.

That’s because the real threat to net neutrality is lack of competition in the ISP market. The situation would be only worse with the Comcast-Time Warner Cable deal.

Allowing Comcast, which owns the major content provider NBCUniversal, to augment its domination of the Internet service market would put more pressure on the FCC to monitor and constrain Comcast’s documented anti-competitive instincts. Wheeler’s proposed rules would hamstring the commission’s ability to do so.

It’s this synergy that really spells danger for the open Internet. As Tim Wu of Columbia Law School asserts, the Wheeler rule will leave bloggers, start-ups and nonprofits in Internet steerage. “They’ll be behind in the queue, watching as companies that can pay tolls to the cable companies speed ahead,” he wrote recently. The Internet’s role as a facilitator of innovation will start to disappear.

Instead of a bright line establishing that any discrimination by ISPs is forbidden, Wheeler would substitute an endless series of laborious case-by-case investigations.

“You would need a small army of telecommunications lawyers and economists to bring a case under the new rules,” says Marvin Ammori, a telecommunications lawyer in Washington. At every turn, that small army would face a huge army of lawyers and lobbyists mobilized by big companies. Who would win in this conflict? Not you, the consumer.

The Wheeler plan vividly illustrates how Washington has been taken over by powerful businesses aligned against the public interest. Wheeler himself is a former telecommunications and cable lobbyist. One of Comcast’s Washington lobbyists, Meredith Attwell Baker, is a former FCC commissioner.

The incumbent ISPs, meanwhile, have worked to hobble potential competition from public broadband providers. More than 20 states have enacted or are considering laws hampering the rollout of public Internet systems. The laws merely protect cable operators that provide their U.S. customers with some of the worst and most expensive broadband access in the developed world.

So here’s what’s in store for you. If the FCC approves the Comcast-Time Warner Cable deal, Comcast will have less incentive than ever to bring its customers the fastest Internet connection at the most reasonable price. If the FCC approves Wheeler’s net neutrality proposal, Comcast will have more leeway than ever to squeeze content providers, and consequently the public, for more money for barely adequate service. And every other Internet service provider in the nation will take advantage of the rules to the max.

The public’s only option is to scream bloody murder. Make sure your Congress members are aware that you know what’s at stake. Remind the White House that, as a presidential candidate in 2007, Obama came out foursquare for the “incredible equality” of the netneutral Internet and specifically in opposition to the gatekeeping proposed by Wheeler. He should be held to his commitment.

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