11.12.14 NUTTIN' BUT NET

This article originally appeared in the 11.13.14 issue of Metroland.

Did anybody see this coming?  In the aftermath of the disastrous mid-term elections, leaving us ashamed of our country and fearful of the future, President Obama issued a startling call for pure, clean net neutrality.

            For those of you not playing the home game, a court decision several years ago rearranged the Federal Communication Commission’s presumed jurisdiction over the internet, leaving the web subject to the whims of the several monstrous corporations that control our access to it.  The results have been disastrous. We have some of the slowest and most expensive internet services in the civilized world.  Broadband comes to us through two lightly-regulated duopolies: cable (Comcast and Time Warner) and wireless (AT&T and Verizon). These duopolies are squeezing us dry, providing crap service, and shaking down big users like Netflix for preferential treatment, which has the double whammy effect of driving up Netflix prices while making it all but impossible for any Netflix competitor that can’t afford the bribes to compete.

            The FCC has been considering its reaction to the emasculating court decision.  The simplest fix is for the FCC to simply reclassify the internet as a “telecommunications service” and a “common carrier” like it does with telephones.  But the FCC has been wavering on this, afraid of being sued again by the likes of Verizon and Comcast.  Instead, the FCC has been floating trial balloons for various measures that fall short of what’s called “Title II classification”, none of which would prevent internet service providers from favoring some customers at the expense of others.  Over the past several months, the FCC has received an unprecedented 4 million messages from consumers, demanding that it do the right thing.

            The White House has been equivocating, saying a lot nice sounding things laced with what we in the legal business call “weasel words” that can be interpreted all kinds of ways, rendering the White House statements meaningless.

            Until now.  On Monday, Obama called for the FCC to reclassify the internet as a Title II common carrier, which would allow the FCC to bar ISPs from blocking, speeding up, or slowing down particular internet traffic.  Remarkably specific and wonky, Obama also suggested that the FCC “forbear” on various Title II regulations that don’t neatly apply to the internet.

            This is big.  It calls for a level playing field for anyone using the internet.  It is utterly sane.  And while it wouldn’t immediately cure all of our internet ills (things like universal service and data caps still need to be addressed), Obama has for once put himself in the voice-of-the-people position, the position he campaigned on, and is standing up to the corporate behemoths who would otherwise hijack the internet and a big chunk of our future.

            The reactions to Obama’s statement have been all too predictable and depressing.  It’s the sound of money talking.  The ISPs trotted out the same tired arguments that Title II classification was overbearing “government regulation” that would inhibit investment and innovation and competition.  Never mind that these companies’ investment in the internet drastically declined over the past five years and that innovation likewise slowed as a result.  Why?  Because there is no real competition in the internet service industry!  Duh!  Never mind that these companies have delivered to us a level of internet service that is the laughing stock of the rest of the world.

            Then there are the paid whores masquerading as elected officials and policy experts.  Some phony business analyst at Fox News used the word “Orwellian”.  Ted Cruz, who has reeled in a ton of campaign money from Comcast, etc., got headlines saying that net neutrality is the “Obamacare of the internet.”  Which, if we didn’t already know it, reveals Ted Cruz as a lying, pathetic, pandering, cowardly, racist, fascist little douchebag, an embarrassment to us all.

            What happens now?  Well, we wait for the FCC to issue a ruling, which may happen in December.  The FCC is an independent agency, so Obama’s prodding only goes so far.  And “independent” is a relative term.  Tom Wheeler is the chairman of the FCC, but he is the former chief lobbyist for cable and wireless industry, a position currently held by Michael Powell, a former FCC commissioner.  See how that works?

            Wheeler, who has been alternatively strident and spineless through this debate, is reportedly skeptical of Title II classification and wants everyone to know that the FCC is independent and can make up its own mind about these things.  The latest is that he’s considering a hybrid plan that will deem the internet as a Title II telecommunication service in its dealings with content providers, but keep it virtually unregulated in its dealings with consumers.  Huh?

            Which is a puzzling position for a guy who’s afraid of getting sued.  And it’s another way of saying “OK, we’ll protect the corporations with regulations, but you little people?  You’re on your own.”  Sigh.

Paul Rapp is a local IP and art and entertainment attorney who is getting ready to renew his call for the northeastern United States to secede from the Union.  And to take Austin, Texas, Asheville, North Carolina and New Orleans along with it.