Post Net Neutrality

FCC Roundtable Roundup

October 10, 2014 , , ,

Over the past month, the Federal Communication Commission (FCC) has hosted panels to publicly discuss the various elements of net neutrality. The Chairman and Commissioners did not take them lightly; the FCC held over six different panels on four different days, totaling more than 24 hours of straight net neutrality talk. Chairman Wheeler actively participated in all, either in person or through Twitter questions.

While the panels remained inside D.C., allowing very few of the 3.7 million interested parties to participate in person, all panels were streamed live and the public was asked to submit question either by email or Twitter.

For those of you not able to enjoy 24 hours of discussion on policy approaches, enforcement ideas, economic aspects, and the legality of an open internet, here is a roundtable roundup of what I see as the two most important discussions:

1. Paid Prioritization

Starting from the very first panel – which our own Michael Weinberg participated in – the discussion continued to come back to paid prioritization. Paid prioritization is the idea of a two-tiered internet with fast lanes and slow lanes. In this system ISPs would be able to offer companies the chance to reach their consumers faster for an additional fee. Those in favor of the idea argued that banning paid prioritization entirely was heavy handed, while Public Knowledge and others argued that prioritization squashes innovation.  

While those in favor of paid prioritization dominated the conversation, their arguments failed to acknowledge future harm. Many emphasized competition in its current condition as sufficient to maintain internet openness. This is an argument that completely disregards the obvious lack of choice in providers (think Comcast/Time Warner Cable Merger).  

In contrast, those against paid prioritization, especially Public Knowledge, made it clear that to use paid prioritization would subvert the internet as we know it and be a clear departure from its original purpose. The effects of paid prioritization would be nearly impossible to reverse.  Paid prioritization would squash innovation and harm our economy by making it nearly impossible for startups to compete.

2. “Bright-Line” (Pure Title II) vs. Hybrid Solutions

After discussing all of the factors that could go into open internet rules, the panelists discussed what they thought would be the best set of rules to create and protect an open internet. The debate focused on using a “bright-line” solution versus a hybrid solution. With a bright-line Title II approach, the internet would be classified as a telecommunications service and would be subject to rules that prevent discrimination and promote accessibility similar to those applied to the phone system. A hybrid approach would include a combination of Title II and section 706 as the basis for authority. Section 706 is the part of the Telecommunications Act of 1996 that gives the FCC authority to act in ways that promote broadband deployment and allows the Commission to make individualized agreements between ISPs and edge providers.

Ultimately, a “bright-line” solution is the best for consumer protection. Hybrid solutions attempt to create an open internet by creating rules that address ISPs’ needs first, and then address consumer protection by assuming the benefits to the company will eventually trickle down to the consumer. This is a shaky and attenuated way to protect consumers and ultimately does not make consumers a priority. To those who feared Title II, Matt Wood of Free Press rebutted with a simple truth saying, “We actually live with many Title II services today [and] there has been no harm to investment or deployment.”

So, what’s the verdict?

When the panels came to a close Tuesday, it was clear that the fight for net neutrality is not over yet, and many pointed out litigation is inevitable no matter what rules the FCC decides on. However, as was pointed out by Nuala O’Connor from the Center for Democracy and Technology, the fear of litigation cannot and must not prevent us from making decisions in the public interest.

They FCC Roundtables were a great way to allow both the Commission and the public to understand the options and consequences involved in creating strong net neutrality. Now, it is time for the FCC to stop running in place and make a decision that affirms their authority as a consumer protection agency.