Strike Two: Obama's Second FCC Chair Fails on Net Neutrality

by Timothy Karr

The lines are now clear, says Karr: "Either you are for Net Neutrality or you're with [FCC chair] Tom Wheeler. You can no longer say you're for both." (Image: Free / text added)

When President Barack Obama pledged to appoint a Federal Communications Commission chair who was dedicated to protecting Net Neutrality, we had no reason to doubt he'd find the right person for the job.

Obama campaigned in 2008 as a strong champion of the open Internet, telling an audience that he'd "take a back seat to no one in my commitment to Net Neutrality." He said that his chair would share his views on safeguarding the open Internet.

Now, the president is on his second FCC chair, and neither has proven himself up to the task.

Strike One

The first, Chairman Julius Genachowski, constructed an "Open Internet Rule" that was doomed from the outset. Built upon a flimsy legal foundation and riddled with telco-friendly loopholes, the Genachowski rule was shot down by a federal appeals court in January.

By then Genachowski had fled the FCC leaving his mess for others to sort out.

No worries, assured President Obama earlier this year. "The new commissioner of the FCC, Tom Wheeler, whom I appointed, I know is a strong supporter of Net Neutrality."

Obama said the federal appeal court decision, while rejecting Genachowski's scheme, did confirm that the FCC could use its powers to protect Internet users from online censorship and discrimination.

"They have authority," Obama said. "And the question now is how do they use that authority. If the old systems and rulings that they had in place were not effective in preserving Net Neutrality, do they have other tools that would stand up to court scrutiny that accomplishes the same goals."

Strike Two

As Obama's second FCC chair, Wheeler will put into circulation today a proposal for a new rule. All evidence suggests that Wheeler's proposal is a betrayal of Obama and of the millions of people who have called on the FCC to put in place strong and enforceable Net Neutrality protections.

It reportedly would allow Internet service providers to charge an extra fee to content companies for preferential treatment, guaranteeing their content reaches end users ahead of those that do not pay.

Giving ISPs the green light to implement Internet payola schemes will be a disaster for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. These users will all be pushed onto the Internet dirt road, as phone and cable companies will start to prioritize access to the few online sites and services that can afford the fees.

The Zero-Sum Game

This is bad news for anyone who thinks the Internet marketplace should remain open to all comers. By design, the Internet's flat network architecture has allowed anyone to innovate without having to first seek permission from the service providers that control much of the "last mile" access to Internet users.

Under Wheeler's proposed regime ISPs won't just favor the sites that pay up; they'll also give special preference to their own services. For years they have tried to kill any Net Neutrality rules that prevent them from protecting their legacy voice, text and video services from the kind of competition the open Internet makes possible.

The prioritization of data on the Internet is a zero-sum game. Unless there is continual congestion, no website would pay for priority treatment. This means Wheeler's proposed rules will actually produce a strong desire for ISPs to create congestion through artificial scarcity. Americans need the opposite: an Internet that is fast open and abundant. Under Wheeler's scheme there is no motivation for ISPs to deliver the next-generation Internet.

In a statement late Wednesday evening Wheeler indicated that his approach is shaped by the January court decision. But the federal appeals court gave Wheeler a clear path forward: to protect real Net Neutrality the FCC must reclassify broadband providers as the common carriers they are. Wheeler instead chose a convoluted prioritization scheme that undercuts the level playing field that has made the Internet such a powerful engine for opportunity.

Obama's Choice

A former cable and wireless industry lobbyist, the chairman is a longtime Obama loyalist and fundraiser. Prior to today's proposal he has repeatedly declared his commitment to a "free and open Internet" and public service.

"If I am fortunate enough to be confirmed, my client will be the American public and I hope that I can be as effective an advocate for them as humanly possible," Wheeler told senators during his confirmation hearing last June.

And yet clearing the path for a payola Internet is an insult to the millions of people who have actively called on the agency to preserve the open Internet. And it's an insult to President Obama who has repeated his commitment to Net Neutrality on multiple occasions since declaring his White House ambitions.

For Obama the choice is now clear: Either you are for Net Neutrality or you're with Tom Wheeler. You can no longer say you're for both.


Timothy Karr serves as the Campaign Director for Free Press, the Free Press Action Fund and Karr also critiques, analyzes and reports on media and media policy in his popular blog, MediaCitizen.


Wake Up, Internet. Time to Save Yourself.

by Craig Aaron

What if you had only three weeks before the Internet you know and love was about to disappear?

Would you spend your time binging on listicles or the final season of Breaking Bad? Or would you do something about it?

Would you email all your friends with the news? Blast your social media networks? Demand that Congress and the president keep this amazing invention from going away?

If the Internet had only three weeks left, would you take to the streets and raise hell?

I bet you would.

And here’s your chance to prove it: Because three weeks from today the Internet as we know it may not disappear, but it could be a lot closer to the precipice.

On May 15, the Federal Communications Commission will propose a new set of rules that are supposed to stop big phone and cable companies from blocking websites or discriminating against apps and services they don’t like. Only as written the rules would do pretty much the opposite.

According to numerous sources, FCC Chairman Tom Wheeler’s proposal would allow Internet service providers like Verizon or Time Warner Cable to charge extra fees to content companies like Google and Netflix for preferential treatment, guaranteeing their content reaches end-users ahead of those that don’t pay.

In other words: Goodbye, open Internet. Hello, payola Schminternet.

Of course, big Internet service providers like AT&T and Comcast love the idea of a pay-to-prioritize Internet. Instead of having to invest in upgrading their networks or responding to their customers’ needs, they can profit from unnecessary congestion and artificial scarcity. Think about it: No one will pay for a spot in the express lane unless the main road is always jammed up.

Such pay-for-priority schemes would be a disaster for startups, nonprofits, independent content creators and everyday Internet users who wouldn’t be able to pay these unnecessary tolls. And the stifling of future competitors and disruptive innovators would be a fringe benefit for the big ISPs as they line their pockets. The FCC proposal would even allow ISPs to favor their own content over all others.

This is not what Net Neutrality looks like. It’s what the end of Net Neutrality looks like.

The FCC’s latest botched attempt to make rules for the open Internet is the result of a federal court decision earlier this year. That ruling threw out the FCC’s existing open Internet rules and sent the agency back to the drawing board. Wheeler insists the new rules “will restore the concepts of Net Neutrality consistent with the court’s ruling in January.”

But contrary to Wheeler’s claims, the court didn’t force the FCC to choose this path. After the ruling, the FCC had a chance to reverse its failures and pursue real Net Neutrality. Instead, in a moment of extreme shortsightedness, it opened the door to greater discrimination while taking a convoluted, case-by-case approach that likely won’t survive a future legal challenge.

The court clearly told the FCC that if it wishes to ensure Internet users can send and receive information free from ISP interference, then the agency must classify ISPs as telecom carriers under Title II of the Communications Act.

While reclassifying broadband wouldn’t be easy politically given the clout of the big cable and phone companies (the same companies Wheeler used to lobby for, by the way), it would put the agency on much stronger legal footing. It’s also the right thing to do — really, the only thing to do — to protect the public and safeguard the Internet’s future.

Wheeler’s draft is not the last word on the issue. He needs at least two more votes on the Commission before he can put the rules out for public comment. And final rules won’t be issued until late summer at the earliest (and likely not until after Election Day).

But now is the time for action. The next three weeks are absolutely crucial to building the public pressure it will take to get the FCC to scrap this wreck and do what it should have done in the first place: reclassify broadband.

So sign a petition and spread the word. Call Tom Wheeler right now and remind him he works for you — and that you won’t settle for anything less than real Net Neutrality.

Start making plans to be in Washington, D.C., on May 15 to stand up for the open Internet. FCC commissioners spend too much time staring at lobbyists: They need to see our faces.

What if you had only three weeks to save the Internet? What would you do?

Whatever it is, you should drop everything and do it right now.


Craig Aaron is president and CEO of Free Press, the national, non partisan media reform group. He is the editor of two books, Appeal to Reason: 25 Years of In These Times and Changing Media: Public Interest Policies for the Digital Age. He is a graduate of Northwestern University’s Medill School of Journalism.


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