The One Loophole to Rule Them All

[Commentary] We are one month from the Federal Communications Commission issuing a final decision on network neutrality. But it will be a month that matters because it’s not yet clear who will triumph. For the next month, the giant phone and cable companies will be lobbying to put a loophole in the FCC’s rule. Any significant loophole will do. They will ask for many loopholes, but all they need is one. So they can “compromise” by letting go of several outrageous loopholes because with one alone they can create an entirely new business ecosystem of slow and fast lanes that undermines the open Internet. It would be the one loophole they need to rule all the websites and users. If FCC Chairman Wheeler’s rule deviates from President Obama’s proposal and doesn’t include these four principles, you should be freaked out.

1. Bright-line, enforceable rules: We need bright-line rules that clearly define in advance which behavior is and is not allowed, using easily verifiable behavior.
2. Applying the rules to “interconnection”: President Obama called for the FCC “if necessary to apply net neutrality rules to points of interconnection between the Internet service provider and the rest of the Internet.”
3. Policing “specialized services”: Nobody really knows what a specialized service is, but the idea is that cable and phone companies might offer services that are not access to the Internet and they should be subject to different laws. The FCC should define the term very narrowly and clarify that cable companies cannot use them to circumvent network neutrality rules on the Internet.
4. Title II authority: President Obama called on the FCC to use its “Title II” authority. That’s the FCC’s main authority, and the commission uses it to govern phone service, mobile phone service, rural access to the Internet, and big-business access to the Internet.