Pretty much everyone says they are in favor of net neutrality-the idea that service providers shouldn't engage in data discrimination, but should instead remain neutral in how they treat the content that flows over their networks. But actions speak louder than words, and today's action by the FCC speaks volumes. After weeks of hand-waving and an aggressive misinformation campaign by major telecom companies, the FCC has taken the first concrete step toward dismantling the net neutrality protections it adopted two years ago.
Specifically, the FCC is proposing a rule that would reclassify broadband as an "information service" rather than a "telecommunications service." FCC Chairman Ajit Pai claims that this move would protect users, but all it would really do is protect Comcast and other big ISPs by destroying the legal foundation for net neutrality rules. Once that happened, it would only be a matter of time before your ISP had more power than ever to shape the Internet.
Here's why: Under the Telecommunications Act of 1996, a service can be either a "telecommunications service" that lets the subscriber choose the content they receive and send without interference from the service provider; or it can be an "information service," like cable television, that curates and selects what subscribers will get. "Telecommunications services" are subject to nondiscrimination requirements-like net neutrality rules. "Information services" are not.
For years, the FCC incorrectly classified broadband access as an "information service," and when it tried to apply net neutrality rules to broadband providers, the courts struck them down. Essentially, the D.C. Circuit court explained that the FCC can't exempt broadband from nondiscrimination requirements by classifying it as an information service, but then impose those requirements anyway.
The legal mandate was clear: if we wanted meaningful open Internet rules to pass judicial scrutiny, the FCC had to reclassify broadband as a telecom service. Reclassification also just made sense: broadband networks are supposed to deliver information of the subscriber's choosing, not information curated or altered by the provider.
It took an Internet uprising to persuade the FCC to reclassify. But in the end we succeeded: in 2015 the FCC reclassified broadband as a telecom service. Resting at last on a proper legal foundation, its net neutrality rules finally passed judicial scrutiny [PDF].
Given this history, there's no disguising what the new FCC majority is up to. If it puts broadband back in the "info service" category and then tries to appease critics by adopting meaningful net neutrality rules, we'll be in the same position we were three years ago: Comcast will take the FCC to court-and Comcast will win. It's simple: you can't reclassify and keep meaningful net neutrality rules. Reclassification means giving ISPs a free pass for data discrimination.
Chairman Pai's claim that this move is good for users because it will spur investment in broadband infrastructure is a cynical one at best. Infrastructure investment has gone up since the 2015 Order, ISP profits are growing exponentially, and innovation and expression are flourishing.
At the same time, too many Americans have only one choice for high speed broadband. There are good reasons to worry about FCC overreach regulation in many contexts, but the fact is the U.S. broadband market is now excessively concentrated and lacks real choice, and there are few real options to prevent ISPs from abusing their power. In this environment, repealing the simple, light-touch rules of the road we just won would give ISPs free reign to use their position as Internet gatekeepers to funnel customers to their own content, thereby distorting the open playing field the Internet typically provides, or charge fees for better access to subscribers. Powerful incumbent tech companies will be able to buy their way into the fast lane, but new ones won't. Nor will activists, churches, libraries, hospitals, schools or local governments.
We can't let that happen. So, Team Internet, we need you to step up once again and tell the FCC that it works for the American people, not Comcast, Verizon, or AT&T. Go to dearfcc.org and tell the FCC not to undermine real net neutrality protections.
