The FCC's Guide to Losing Net Neutrality Without Really Trying

Ever have to negotiate a contract or try to sell a used car?

Would you start off the give-and-take by naming the lowest price you're willing to accept and then try to get a better deal?

Of course not. Yet somehow that's the exact "strategy" the Obama administration seems intent on pursuing - and not just on tax cuts for the richest Americans.

The Washington Post's Greg Sargent described this pathology among Democrats in a post last week:

The problem isn't that Dems aren't capable of winning an argument. It's that they don't think they're capable of winning a protracted political standoff, even on an issue where the public is on their side, once Republicans start going on the attack. They seem to set their goal early on at salvaging a compromise, rather than going for the win. As a result, they tend to telegraph weakness at the outset, sending a clear message that they'll essentially give Republicans what they want as long as they can figure out a way to call it a compromise.

I don't know if such rampant spinelessness is genetic or contagious, but substitute "big phone and cable companies" for "Republicans" in the previous paragraph, and you've nailed the Federal Communications Commission's approach to the Net Neutrality debate.

Over the past year, FCC Chairman Julius Genachowski has managed to take the administration's top tech priority - and Obama's promise to "take a back seat to no one" on the issue - and driven it into a ditch.

Instead of staking out a strong position and forcing powerful companies like AT&T and Comcast to come to the table for a compromise, Genachowski has been negotiating against himself, backpedaling from his backpedaling, and ultimately proposing toothless rules that look nothing like real Net Neutrality.

Yet now Genachowski expects the millions of Americans who have spoken out for Net Neutrality to swallow this lemon when the FCC meets to vote on his rules on Dec. 21.

How We Got Here

Let's review: Obama swept into office with safeguarding the free and open Internet front and center on his technology agenda. He appointed Genachowski, who pledged to deliver on that promise. Under attack from the phone and cable companies and their astroturf front groups, the FCC chairman proposed imperfect but generally good Net Neutrality rules last fall.

The FCC was thrown a curveball in April when a federal appeals court ruled that the FCC lacked the authority to create rules that protect Internet users because of an ill-advised change made during the Bush administration. Genachowski has the power and legal precedence to restore the FCC's authority under the law, but he has failed to act.

Instead of using his bully pulpit to educate the public about what's at stake if we lose the free and open Internet, Genachowski conducted closed-door meetings that only included the biggest industry players. Those fell apart when Google and Verizon went public with their controversial pact to carve up the Internet. But rather than seize the moment of public outrage to push for stronger rules, the FCC chairman sat mute on the sidelines.

Eventually, with an election approaching and Genachowski seemingly paralyzed with indecision, Congress got in on the act. Rep. Henry Waxman started shopping a seriously flawed compromise bill. But when Republicans refused to play ball, it was never introduced.

Waxman's legislation was designed to win the unanimous consent of not only the major stakeholder, but all 535 members of Congress. Genachowski, on the other hand only needs three votes -including his own to enact a strong Net Neutrality rule at the FCC. Yet when he circulated his proposed rules to the other FCC commissioners last week, he proudly declared it was based on Waxman's watered-down approach.

By my count, that makes his plan a compromise on a compromise on a compromise.

How to Fix Fake Net Neutrality

As it reportedly stands now -- and nobody outside the FCC knows exactly what the rules say -- the biggest Internet service providers will have a free hand to harm consumers, stifle innovation and carve up the Internet in irreversible ways. The fact that AT&T seems perfectly pleased with these rules tells you pretty much everything you need to know.

Fortunately, it's not too late to fix them. As detailed in a letter sent to the chairman today and signed by more than 80 public interest groups, civil rights organizations and innovative business leaders, there are five key areas that must be addressed.

  1. Wireless. Even though Genachowski has said it's "essential that the Internet itself remain open, however users reach it," his proposal would leave wireless networks unprotected. It would enshrine Verizon and AT&T as gatekeepers to the rapidly expanding world of mobile Internet access, allowing them to favor their own applications while blocking, degrading or de-prioritizing others.
  2. Paid Prioritization. Genachowski's proposal reportedly fails to explicitly prohibit deals that would allow ISPs to charge steep tolls to favor the content and services of a select group of corporate partners, relegating everyone else to the cyber-equivalent of a winding dirt road. (See the video above.)
  3. Key Definitions. The devil is always in the details at the FCC. So its important how the agency defines terms such as "Broadband Internet Access Service" and "reasonable network management" so giant loopholes aren't created that could undermine the purpose of these rules.
  4. Specialized Services. Last summer's Verizon-Google pact was widely lambasted because the deal would have allowed ISPs to split the Internet into two pipes: the public one we have now and a separate private lane reserved for "specialized services." The FCC needs to be sure there are safeguards so we don't lose today's level playing field where anyone with a good idea has the change to be the next Google or Facebook.
  5. Legal Footing. Genachowski reportedly is grounding these new rules in the same kind of legal arguments that were rejected by the courts last spring. This strategy presents an unnecessary risk in a short-sighted attempt to avoid "reclassifying" broadband under Title II of the Communications Act. Such a move doesn't just put Net Neutrality on shaky ground, it places the FCC's entire broadband agenda in jeopardy.

That's what needs to be fixed to turn Genachowski's faux Net Neutrality proposal back into the real thing. Getting there before Dec. 21 will be an uphill climb.

To pass his rules, the FCC Chairman will need the votes of Democratic Commissioners Michael Copps and Mignon Clyburn -- who always have been stalwart supporters of Net Neutrality and champions of the public interest. They will be under immense pressure to back the chairman, which is why it's so important that they hear from you before the vote.

We have less than two weeks to repair this clunker and rescue Net Neutrality from Genachowski's capitulation. Make sure your voice is heard now.

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