Setting the Chicken Little ISPs Straight

The opponents of a truly Open Internet are spending millions of dollars to transform the debate over what should be a no-brainer regulatory finding into something analogous to dropping a hydrogen bomb. The big Internet Service Providers (ISPs) would have us believe that Title II net neutrality is regulatory strangulation, government-by-dictatorship, wholesale infringement of their First Amendment rights, and on and on, ad infinitum, ad nauseum.

Listening to the rants and wails of Comcast, Verizon, and AT&T over net neutrality reminds me of Chicken Little, Henny Penny, and Ducky Lucky rushing to warn their friends of impending doom. “The sky is falling, the sky is falling,” they clucked and quacked; the world is ending. But the sky wasn’t falling; it was just a tiny acorn bouncing harmlessly off Chicken Little’s head. ‘Twas quite the ruckus they raised; it just wasn’t reality.

The net neutrality decision facing the Federal Communications Commission (FCC) is much less dramatic than “The Sky is Falling ISP Threesome” endlessly contend. It is, really, all rather elemental. It is whether to ensure that the government agency charged since the 1920s with protecting consumers, competition, and innovation in telecom still retains these responsibilities in the advanced telecom world of the broadband era. Why anyone other than self-interested businesses would ever have argued otherwise has always been beyond me, but three successive chairmen of the FCC bought into the idea out of some bizarre combination of ideology and industry friendliness.

There is nothing new about ensuring that critically-important segments of the American economy do not fall under the lock-stock-and-barrel control of a handful of business conglomerates intent on building market power and gatekeeper control. Our nation awoke to this threat beginning in the late nineteenth and early twentieth centuries and passed laws and rules of redress. The sky was going to fall then, too, our forebears were told by one industry sector after another. It didn’t. Instead, industries prospered, innovation was nurtured, and citizens began to enjoy at least some basic consumer protections.

Telecommunications was brought under this rubric, too, beginning in the 1920s and 1930s. Progress was halting at the outset, to be sure, and at first it looked like the old Bell monopoly system would emerge unscathed. But over time the courts and Congress paved the way for more competition and consumer protections. It’s a battle that never ends, of course, given that the quest for market power is built into our economic system. Big business will always push hard and push back, not just against specific rules, but against the basic principle that society has the right, indeed the urgent need, to put limits on what powerful industries want. Without that right government by the people withers and dies.

So when the FCC fell asleep at the switch in the 1980s and again in the early 2000s, the telecom industry giants swooped in to fill the vacuum, managing to remove many of the safeguards that had been applied to them, thereby stifling potential competitors and short-changing fairness in the consumer marketplace. And when the advanced telecommunications of broadband came along, these same special interests managed to remove it from the basic regulatory oversight that had been put in place by consumer advocates, Congress, and the courts over the years. Advanced telecommunications wasn’t even telecommunications at all, the industry argued. And they lobbied and lawyered the FCC into supine agreement.

Right now, because of mistaken decisions made under both Republican and Democratic-controlled FCC majorities, we have no effective Open Internet protections. The DC Circuit Court of Appeals threw out the bland rules the FCC passed in 2010 because the Commission placed those rules outside the operative section of the Telecommunications Law. The Court didn’t reject the rules because they were bland; it rejected them because the agency refused to treat advanced telecommunications as telecommunications. But the Court also telegraphed another message: the Commission had the authority to put real net neutrality rules into the operative part of the law—Title II—and those rules could then pass court muster.

Why would we even consider a broadband ecosystem where there are no solidly-based rules against an ISP blocking sites it might not like; no rules against favoring its own content, or speeding up the content of favored friends, or slowing down organizations, causes, and advocates with whom it disagrees? And wouldn’t we be much better off with prohibitions against an ISP providing fast lanes for, say, the 1% and slow lanes for the rest of us? Instead we have an environment where a powerful few can keep the Internet from actually being the Internet, thereby making a mockery of technology’s dynamic potential to transform our lives. The Internet the ISPs want to provide us is a stunted version of what might have been. Or yet could be, if the FCC would only come to its senses.

So, putting aside all the sky-is-falling caterwauling, here is what the FCC needs to do now: Treat broadband as the telecommunications it so obviously is under Title II, and reassert that there is still a place in government responsible for protecting consumers, innovators, and citizens generally from what will otherwise surely be unbridled industry gate-keeper control over the communications ecosystem upon which our nation’s future rides. Without this authority there can be no protections—no Open Internet.

Once such authority is re-established, we can get down to the business of crafting specific Open Internet rules. No one in her or his right mind would argue that every one of the specific regulations that applied to twentieth century phones should automatically apply to twenty-first century broadband. Title II allows, indeed encourages, flexibility in applying general safeguards and protections. So the job of the agency is two-fold: (1) assert the general principles -- in this case no blocking, no discrimination, no fast lanes prioritized for a favored few; and (2) craft workable rules to breathe life into the principles. Step (1) should be taken immediately.

Developing the specific rules must then be the work of stakeholders far-and-wide. Innovators, technologists, consumer advocates, public interest organizations, and citizens generally have important contributions to help guide the FCC to good decision-making. So, of course, does business. Joining in reasoned dialogue on how to implement an Open Internet, the telecom companies will find an atmosphere where life is still good, profits are real, everyone understands the rules, and everyone wins. Effective Open Internet rules will need to evolve as the ecosystem evolves; to be acutely attuned to encouraging conditions where innovation, technology, and entrepreneurship can thrive; and to ensure that consumers of these services are in maximum control of their online experiences.

The Chicken Littles crow that real net neutrality would cause the sky to fall. Nothing could be further from the truth. Title II classification with judicious forbearance is precisely the kind of light-touch regulation that safeguards consumers, citizens, and innovators alike from the predations of ISP gatekeepers.

Chicken, Henny, and Ducky thought the sky was falling. The sky brightens with an Open Internet.