The White House Gets It Right On Net Neutrality. Will the FCC?

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The White House Gets It Right On Net Neutrality. Will the FCC?

The fight for net neutrality, as with the larger fight for internet freedom, will ultimately be determined by how well users of the web are able to combat the forces who want dominion over it. (Photo via FreePress.net)

Over the past year, millions of Internet users have spoken out in defense of the open Internet. Today, we know the White House heard us.

In a statement issued this morning, President Barack Obama has called on the Federal Communications Commission to develop new “net neutrality” rules and, equally importantly, establish the legal authority it needs to support those rules by reclassifying broadband service as a “telecommunications service.”

This is very welcomed news. Back in May, the Federal Communications Commission proposed flawed “net neutrality” rules that would effectively bless the creation of Internet “slow lanes.” After months of netroots protests, we learned the FCC began to settle on a “hybrid” proposal that, we fear, is legally unsustainable.

Here's why: if the FCC is going to craft and enforce clear and limited neutrality rules, it must first do one important thing. The FCC must reverse its 2002 decision to treat broadband as an “information service” rather than a “telecommunications service.” This is what’s known as Title II reclassification. According to the highest court to review the question, the rules that actually do what many of us want — such as forbidding discrimination against certain applications — require the FCC to treat access providers like “common carriers, ” treatment that can only be applied to telecommunications services. Having chosen to define broadband as an “information service,” the FCC can impose regulations that “promote competition” (good) but it cannot stop providers from giving their friends special access to Internet users (bad).

Today’s statement stresses a few key principles:

  1. No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business.
  2. No throttling. 
  3. Increased transparency, including with respect to interconnection. 
  4. No paid prioritization. “No service should be stuck in a 'slow lane' because it does not pay a fee.”

Wisely, the statement explicitly notes the need for forbearance. As we have said for months, reclassification must be combined with a commitment to forbear from imposing aspects of Title II that were originally drafted for 20th century telephone services and that don't make sense for the Internet. While forbearance doesn’t set the limits on the regulatory agency in stone, it does require the FCC to make a public commitment that is difficult to reverse. 

This is an important moment in the fight for the open Internet. President Obama has chosen to stand with the us: the users, the innovators, the creators who depend on an open internet. But the fight isn't over yet: we still need to persuade the FCC to join him. Stay tuned for ways you can help.

Corynne McSherry

Corynne McSherry is Intellectual Property Director at EFF, specializing in intellectual property and free speech issues.

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