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Net Neutrality: Are We There Yet?

DEEPLINKS BLOG
March 11, 2015

Net Neutrality: Are We There Yet?

The Federal Communications Commission voted 3-2 in favor of net neutrality rules last month, and we expect the final version of rules to be released shortly. From all reports, it sounds like the rules generally track what we (and four million Americans!) have been urging over the past year. But the incumbent ISPs are working hard to seed fear, uncertainty, and doubt about what the FCC's up to. Let's cut through some of the nonsense.

Net Neutrality, especially the switch to Title II, is a result of grassroots activism, not a regulator's power grab.

The FCC was not the driving force behind the most important piece of the new rules: the FCC's embrace of Title II as the basis for is regulation. For over a decade, the FCC has been issuing Open Internet rules based on the wrong legal theory -- and losing in court every time. In 2014, the FCC was headed down the same wrong path.  What is worse, it actually proposed a very limited order that would effectively bless some non-neutral practices. In response, an extraordinary coalition of public interest groups, private companies, investors, not to mention four million Internet users, spoke up to demand meaningful net neutrality. And we were smart about it, demanding that the FCC use "forbearance" to limit the potential for overreach by designating certain regulatory powers as off-limits. They've done this, too, in the new order.

We've explained, though, that the new rules aren't perfect, and that the "General Conduct Rule" in particular presents an opportunity for abuse.

Net Neutrality is not "regulating the Internet."

Everyone in the net neutrality debate applauds the diversity of the Internet and low barriers to entry for Internet services. Net neutrality is about preventing the companies that connect you to the Internet from acting as gatekeepers and threatening that diversity and opportunity for innovation. The FCC's net neutrality regulations will help make sure that ISPs don't unfairly favor (or disfavor) some applications and services, just as its common carrier obligations helped ensure that phone carriers couldn't strangle the Internet in its infancy, back in the days of dial-up modems. 

The rules are 8 pages long, not 300 pages.

Early reports pegged the new order at 300 pages, but we now know that only 8 pages are actual regulatory text. The source of confusion—which even got us in the past few weeks—is that the whole order is over 300 pages, but consists almost entirely of the record of factual findings by the FCC and responses to comments they received. Opponents of net neutrality have boosted the "300 page" number to suggest onerous complexity, but that's not the case.

The FCC could do better on transparency.

Some of the claims around transparency are pure smoke. For example, the public release of the rules was delayed because the Republican FCC commissioners were stalling, not because the FCC majority wanted them secret.

On the other hand, the massive level of public engagement with the FCC over net neutrality stands in stark contrast to the FCC's business as usual. We learned that ISP lobbyists have a direct channel to FCC commissioners, even as the details of that arrangement appear to be beyond the reach of a Freedom of Information Act request. From the little that has been released, it looks like they send in a stream of bad legal advice and distorted facts until even well-intentioned commissioners hesitate to do the right thing.

The net neutrality debate has been contentious, and there are areas where we're still waiting on important facts. But regardless of your stance on the FCC's new rules, it's important to separate fact from misinformation.

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