Critics on Both Ends of the FCC’s Net Neutrality Rules, With a Few Supporters in the Middle

Editor’s Note: Federal Communications Commission Chairman Tom Wheeler is attempting to craft legally unassailable rules promoting net neutrality. But he’s run into trouble from all sides. Communications providers aren’t happy. His fellow commissioners aren’t happy. And the “netroots” activists aren’t happy, either.

BroadbandBreakfast.com posts three articles on Thursday’s action at the FCC. First, the scene at 12th Street SW. Second, the reaction from interested parties. Third, what the details of the agency’s order says.

WASHINGTON, May 19, 2014 – The Federal Communication Commission’s effort to thread the needle on net neutrality with regulations that will withstand legal scrutiny while also satisfying open internet activists led to starkly divided responses to the Thursday measure.

In the camp expressing disappointment that agency Chairman Tom Wheeler didn’t go further, Sen. Ed Markey, D-Mass., a member of the Commerce Science and Transportation Committee, said that innovation over the internet in America could unless broadband were to be reclassified as a common-carrier telecommunications service.

“Internet access today is like traditional phone service decades ago – we can’t live or work without it,” Markey said. “We must stop broadband behemoths from setting up fast and slow lanes and picking winners and losers. Start-ups and small business would suffer, slowing our economy and job growth throughout Massachusetts and around the country.”

Gabe Rottman, legislative counsel and policy advisor with the American Civil Liberties Union agreed on the need to reclassify the Internet as a public utility. “This is a First Amendment issue,” he said, “because if broadband service providers are allowed to slow or block some content at will, they will be able to stifle the speech of internet users.”

Rottman did, however, express gratitude to the FCC for opening the door open to  greater regulation.

Public interest group Public Knowledge thanked the FCC for reacting to the activist pressure. “After extensive public outcry, the FCC is asking questions about the fundamental legitimacy of fast lanes and exploring the viability of Title II,” said Public Knowledge Vice President Michael Weinberg. “This shift simply would not have occurred without the outpouring of concern from organizations, companies, Members of Congress, and individuals who rely on a truly open internet every day.”

Weinberg said that the agency’s proposed “commercially reasonable” standard would open the door to a two-tiered internet of “paid prioritization.”

In the more neutral camp, the Computer and Communications Industry Association acknowledged the need for an open internet, but conceded that finding the proper legal framework was tricky.

National Cable and Telecommunications Association CEO Michael Powell said that “maintaining an open internet is not only the right thing to do, it’s vital to our ability to attract and keep our customers.” He voice deep skepticism that should the internet be reclassified under Title II of the Communications Act, the FCC’s regulatory reach would expand exponentially and lead to a potential slippery slope.

“Treating broadband as a utility-like Title II service would reverse years of settle precedent, dry up investment in broadband deployment and network upgrades, and result in protracted litigation and marketplace uncertainty,” said Powell.

Other industry-focused advocacy groups blasted the very idea of net neutrality. TechFreedom Senior Fellow Geoffrey Manne and TechFreedom President Berin Szoka said that the FCC was stepping outside its authority, denounced the proposed rule as rushed and unsubstantiated, saying that the agency had not proven that there was a problem in the first place.

“The [FCC] is trying to do what must ultimately be done by Congress: effectively rewrite the 1996 Telecommunications Act,” they said. They instead urged lawmakers to reexamine a joint 2010 proposal by Google and Verizon in 2010, as well as the Digital Age Communications Act proposed in 2006 by telecom scholars under the auspices of the Progress and Freedom Foundation, a now-defunct think tank.

Randolph May, president of the Free State Foundation non-profit group, said that sloganeering had triumphed over proper regulatory analysis. Without proper market power or cost-benefit analysis, the FCC’s evidence of harm to consumers is based on nothing more than hypotheticals.

“I’m confident that if we reach a point that America’s consumers believe that the internet needs new FCC regulations in order to somehow be saved from conjectural harms – despite the remarkable progress made in the past absent such regulations – they will make their views known to their elected representatives,” May said.