Tell Congress to Fix the DMCALearn More About Section 1201
I just read the Google/Verizon blog post, and their proposed legislative framework, and listened in on their joint press call. Here’s our press release. In this post, I’m going to focus on a few of the details. Overall, there’s a lot that’s bad about this proposal, and it shouldn’t form the basis of legislation in Congress or of rules by the FCC.
The biggest problem with the framework is that, while purporting to support “the open Internet,” it draws illogical distinctions on the basis of what technology you use to access the Internet, and between “the public Internet” (Verizon’s mantra on the press call) and “additional online services.”
The Google/Verizon blog post misleadingly mentions “the FCC’s current wireline broadband openness principles.” But the FCC’s 2005 Internet Policy Statement refers to broadband, and does not carve out a distinction for wireless. The FCC was right to see that the Internet is the Internet—it makes no sense to apply different principles to different technologies. The facts of each delivery platform are different, so the application of rules might be different in a more bandwidth-constrained environment. In the words of the Communications Act, what’s “unjust or unreasonable” might change. But the same framework should apply regardless of access technology.
Additional Online Services
The companies seem to want to divide the Internet yet further—not just between wired and wireless, but between “the public Internet” and “additional online services.” Thus, “third party paid prioritization” is allowed—a particular online service might pay Verizon so that its services and content reach customers sooner. According to the proposal, these “additional online services” may “make use of or access Internet content, applications or services and could include traffic prioritization.” According to Ivan Seidenberg of Verizon, these can even include entertainment content—he gave examples including a local opera house paying so that its operas are given prioritization, and 3D video.
Discrimination and Oversight
The proposal allows for ISPs to “prioritize general classes or types of Internet traffic, based on latency.” How would this work? How does a startup video or voice provider ensure that its latency-sensitive traffic gets priority treatment—does it have to take each ISP before the FCC (excuse me, before “non-governmental dispute resolution processes established by independent, widely-recognized Internet community governance initiatives”) until it is no longer discriminated against? It would seem that this is the case, because according to the framework, there would be a “presumption” against discrimination, but the only redress would be “case-by-case.”
That points to another large problem with the proposal: a lack of clear authority. Under the Verizon/Google proposal, there would be “consumer protection and nondiscrimination requirements” with respect to broadband, but “[r]egulatory authorities would not be permitted to regulate broadband Internet access service” and “the FCC would have no rulemaking authority.” Everything would be handled on a case-by-case basis—presumably, the FCC would act like a common law court. (Of course, we have a name for the legal principles that arise out of case by case adjudication: rules.) Or it might relegated to rubber-stamping industry-crafted settlements. Either way, this proposal does nothing to fill the huge gap in the FCC's authority to oversee communications infrastructure. Karl Bode has an excellent take on how this proposal leaves the FCC toothless. He writes that
the FCC would act as a show pony, whose authority in issues of enforcement would be superseded by groups created and run by the telecom industry.
That sounds about right, because this isn’t just a weak tea proposal, focusing only on the areas where the companies agree. By carving out and redefining whole sections of the Internet and undermining the FCC, it actively undermines net neutrality, and tilts the landscape in favor of those companies who can afford to tangle with ISPs “case by case” or to have their applications characterized as “additional online services.” Google CEO Eric Schmidt claims to be crafting rules that will protect “the next Google.” But with weak “rules” like the ones his company has proposed, he can rest assured that the next Google will be…Google. If the Verizon/Google proposal is adopted, the window of openness that allowed companies like his to thrive and grow will be closed. The Internet could be frozen in 2010, with companies like his on top. Take action today to make sure that this doesn't happen.