Net neutrality, Obama, FCC, Title II:Your ESSENTIAL guide to WTF is happening

A law on publishing collides with TCP/IP


So why do people (cough, cough, Obama) want to reclassify broadband providers under this arcane law?

Put simply, because rules that were created by the FCC in 2010 in order to deal with the modern reality of the internet – the so-called Open Internet Order – were struck down [PDF] by the US courts following a challenge by Verizon.

That left a potentially huge gap that people are worried that cable companies will exploit. Without new rules, it is possible – in fact, likely – that your cable provider, who is most cases is also your internet provider, will find ways to profit from the video, audio and text sent through its wires to subscribers.

People fear that cable companies will simply try to recreate the current cable system but over the internet. You know, where you receive huge bundles of channels (most of which you don't want) for one fee, then have to pay a higher per-month fee to get a larger bundle with "premium channels", then another fee if you want, say sports, or movies, or HBO or Showtime.

Now imagine internet broadband packages with extra $10 fees if you want to watch news online, or $10 to use Google and other search engines.

The internet – particularly Netflix – has been shaking up the segmented cable model by allowing people to break free of the bundles created by cable companies and watch what they want. It's not just Netflix. There is YouTube and Vimeo and Twitch and other webcasts and live streaming. Cable companies started realizing that new competitors were making it into their customers' living rooms through the cables that they installed.

And the reason this was even possible was because of the so-called "neutrality" demanded of the internet. The general philosophy has been that an ISP supplies a connection and bandwidth for a set fee and what the consumer does with that is entirely up to them.

The very fact that Verizon then went to the trouble of suing the FCC to get the existing rules that prevented it from discriminating on the basis of content overturned is, ironically, what is spurring people on to push the old 1934 law of "common carriers" onto the cable companies, so that they are legally prevented from touching the data and so from imposing a cable business model on the internet.

Short of new legislation, which absolutely no one thinks is a viable option since it would effectively open up telecommunications policy all over again, the best next option is to go to the 1934 act and tear out the bits that no longer make sense.

What's stopping it from happening?

Very, very strong opposition from the cable companies: Verizon, AT&T and Comcast being the main three. Not to mention politicians who are, in the majority of cases, supported by financial contributions from Verizon, AT&T and Comcast.

Verizon in particular has used its successful challenge to the previous FCC rules in the courts to threaten legal action again if it doesn't get its preferred option: to go to the one-paragraph Section 706 in the Telecommunications Act of 1996.

The cable companies make the valid point that the legislation that they would be pulled under is ancient, outdated and in many respects goes against the general philosophy of less government regulation that help the internet to thrive in the first place.

The FCC wants to find a solution that doesn't see it spend the next five years in court fighting for regulation that it doesn't really want. And so it proposed an alternative "hybrid" solution that would split internet access into "wholesale" and "retail" in an effort to find a solution that everyone could live with.

The bully pulpit

Obama's intervention on Monday effectively blows up that suggested compromise. And so a statement from the FCC chairman, Tom Wheeler, on Tuesday makes it clear the watchdog will have to go back to the drawing board.

"In this process all options would be on the table in order to identify the best legal approach to keeping the Internet open… the more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do," said Wheeler.

Any reclassification – and the FCC's own proposed hybrid solution – "raise substantive legal questions," we're told. And specifically on Title II: "Title II brings with it policy issues that run the gamut from privacy to universal service to the ability of federal agencies to protect consumers, as well as legal issues ranging from the ability of Title II to cover mobile services to the concept of applying forbearance on services under Title II."

Wheeler added: "I am grateful for the input of the President and look forward to continuing to receive input from all stakeholders, including the public, members of Congress of both parties, including the leadership of the Senate and House committees, and my fellow commissioners.

"Ten years have passed since the Commission started down the road towards enforceable Open Internet rules. We must take the time to get the job done correctly, once and for all, in order to successfully protect consumers and innovators online."

Or, in other words, "oh crap." ®

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