Strike Two: Obama's Second FCC Chair Fails on Net Neutrality
When President Barack Obama pledged to appoint a Federal Communications Commission chair who was dedicated to protecting Net Neutrality, we had no reason to doubt he'd find the right person for the job.
Obama campaigned in 2008 as a strong champion of the open Internet, telling an audience that he'd "take a back seat to no one in my commitment to Net Neutrality." He said that his chair would share his views on safeguarding the open Internet.
Now, the president is on his second FCC chair, and neither has proven himself up to the task.
The first, Chairman Julius Genachowski, constructed an "Open Internet Rule" that was doomed from the outset. Built upon a flimsy legal foundation and riddled with telco-friendly loopholes, the Genachowski rule was shot down by a federal appeals court in January.
By then Genachowski had fled the FCC leaving his mess for others to sort out.
No worries, assured President Obama earlier this year. "The new commissioner of the FCC, Tom Wheeler, whom I appointed, I know is a strong supporter of Net Neutrality."
Obama said the federal appeal court decision, while rejecting Genachowski's scheme, did confirm that the FCC could use its powers to protect Internet users from online censorship and discrimination.
"They have authority," Obama said. "And the question now is how do they use that authority. If the old systems and rulings that they had in place were not effective in preserving Net Neutrality, do they have other tools that would stand up to court scrutiny that accomplishes the same goals."
As Obama's second FCC chair, Wheeler will put into circulation today a proposal for a new rule. 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.
It reportedly would allow Internet service providers to charge an extra fee to content companies for preferential treatment, guaranteeing their content reaches end users ahead of those that do not pay.
Giving ISPs the green light to implement Internet payola schemes will be a disaster for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. These users will all be pushed onto the Internet dirt road, as phone and cable companies will start to prioritize access to the few online sites and services that can afford the fees.
The Zero-Sum Game
This is bad news for anyone who thinks the Internet marketplace should remain open to all comers. By design, the Internet's flat network architecture has allowed anyone to innovate without having to first seek permission from the service providers that control much of the "last mile" access to Internet users.
Under Wheeler's proposed regime ISPs won't just favor the sites that pay up; they'll also give special preference to their own services. For years they have tried to kill any Net Neutrality rules that prevent them from protecting their legacy voice, text and video services from the kind of competition the open Internet makes possible.
The prioritization of data on the Internet is a zero-sum game. Unless there is continual congestion, no website would pay for priority treatment. This means Wheeler's proposed rules will actually produce a strong desire for ISPs to create congestion through artificial scarcity. Americans need the opposite: an Internet that is fast open and abundant. Under Wheeler's scheme there is no motivation for ISPs to deliver the next-generation Internet.
In a statement late Wednesday evening Wheeler indicated that his approach is shaped by the January court decision. But the federal appeals court gave Wheeler a clear path forward: to protect real Net Neutrality the FCC must reclassify broadband providers as the common carriers they are. Wheeler instead chose a convoluted prioritization scheme that undercuts the level playing field that has made the Internet such a powerful engine for opportunity.
A former cable and wireless industry lobbyist, the chairman is a longtime Obama loyalist and fundraiser. Prior to today's proposal he has repeatedly declared his commitment to a "free and open Internet" and public service.
"If I am fortunate enough to be confirmed, my client will be the American public and I hope that I can be as effective an advocate for them as humanly possible," Wheeler told senators during his confirmation hearing last June.
And yet clearing the path for a payola Internet is an insult to the millions of people who have actively called on the agency to preserve the open Internet. And it's an insult to President Obama who has repeated his commitment to Net Neutrality on multiple occasions since declaring his White House ambitions.
For Obama the choice is now clear: Either you are for Net Neutrality or you're with Tom Wheeler. You can no longer say you're for both.