Supporters of an open, truly competitive Internet faced a news cycle's worth of scare headlines. "FCC proposal would destroy net neutrality," screamed the Verge. In only slightly more measured language, the New York Times announced last night that the: "principle that all Internet content should be treated equally as it flows through cables and pipes to consumers looks all but dead."
Not so, say FCC officials. Pushing back against the reports, FCC Chairman Tom Wheeler emailed a statement before midnight saying: "There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong. ... There is no 'turnaround in policy.' The same rules will apply to all Internet content." And the push-back continued today, with a "Setting the record straight" blog post by Wheeler, and via a background briefing by senior FCC officials.
Beyond pushing back at news reports, the FCC says it is trying to thread a needle - upholding its principles of network neutrality within the confines of Verizon's latest anti-neutrality victory in the DC Circuit Court of Appeals. As I explained back then, the court left room for maneuvering, and Wheeler is taking one of the paths it laid out.
Will that prove effective? Net neutrality's staunchest advocates have always had doubts about the FCC's unwillingness to take on the big network owners more forcefully. Dan Gillmor lays out the case here for fighting back.
But it's true that the Verizon ruling leaves Internet users with even fewer protections than before - a problem Wheeler wants to address by year's end, according to a senior FCC official who spoke on condition of anonymity. Although the nation's largest broadband provider, Philadelphia's Comcast Corp., has committed to abiding by the rules voluntarily till 2018, Verizon and other broadband providers are no longer bound by the 2010 order's rules against blocking and unreasonable discrimination, he said.
Protecting against "unreasonable discrimination" is at the heart of the FCC's current approach to the issue, and the FCC official insisted that even stronger, utility-like regulation - while still on the table at the FCC - would also allow a provider to engage in its opposite. But what constitutes "reasonable discrimination" is a tricky question.
"A prioritized connection to a heart monitor might be a good thing for a consumer at home, without harming anyone else,” the official said.
Beyond that easy example? The answers weren't clear. The official said that harm to competition, “including harm that comes from market power,” wouldn't be tolerated by the FCC. He said the agency believes that its Open Internet rules should protect competition - at least among so-called "edge providers" such as Netflix - as a means to encourage the "virtuous cycle" of infrastructure investment and innovation.
“Our goal is to replace the void that exists today in the law,” the official said. And he said repeatedly that next month's "Notice of Proposed Rulemaking" would be a starting point, not an ending point. "We want to have a broad public debate."
A good starting point would be recognizing this: Whether or not the FCC is willing to subject the Internet to public-utility-style regulation, there's no question it's today's essential means of communication - not just the "information service" that the FCC's regulations have portrayed it as for many years. Ultimately, having an Internet dominated by a handful of cable and telephone companies won't serve anybody's interests - not even those companies' shareholders, who will suffer along with the rest of us if rising broadband prices stifle economic growth and innovation.
If regulators do nothing else, they should at least be able to bar broadband providers from blocking legitimate websites or discriminating against innovators that threaten to disrupt somebody's profit stream - including their own. But in the long run, ensuring a truly open Internet will probably take a more forceful approach - perhaps along these lines that Columbia's Tim Wu recently laid out in a proposal submitted to the FCC.