2016 Postmortem

Bennet Kelley

(142 posts) Tue Jul 15, 2014, 07:42 AM Jul 2014

My Comment to the FCC on Net Neutrality

Today is the last day to submit comments to the Federal Communications Commission (FCC) on its proposed rule making on Protecting and Promoting the Open Internet (GN Docket No. 14-28). Nearly 700,000 Americans have done so to date, mine is below.

When the Net Neutrality debate first emerged, critics dismissed the concept as a meaningless slogan, a solution in search of a problem and crying wolf over hypothetical dangers. Then in 2005, SBC Chairman Edward Whitacre declared that companies like Google and Vonage may want to

use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. . . . Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!

Whitacre made clear that the cable and telecom Internet service providers’ (ISPs) objective was to serve as gatekeepers and monetize both the delivery and receiving ends of Internet access.

ISPs tried to distance themselves from Whitacre's admission and argued competition would prevent any ISP from establishing toll booths on the Internet or discriminating against content. That, however, presumes competition.

Sixty percent of Americans have at most a choice between two internet service providers, while thirty percent have either one or no choice at all, which is why it is not surprising that Americans pay more for slower internet service than their foreign counterparts.

Slowly, all of the concerns that had been dismissed as mere speculation began to come to life.

For example, Verizon has:

• refused to activate a non-Verizon tablet;
• blocked pro-choice text messages;
• argued that it had a First Amendment right to censor traffic on its network; and
• indicated to the D.C. Circuit Court of Appeals that it would implement dual market pricing (i.e., charging both the internet user and content providers) were it not for the Open Internet Order establishing the FCC's net neutrality regulations.

In addition, Time-Warner and Comcast each have exempted their own streaming data services from their bandwidth caps, while AT&T and Comcast have blocked access to certain applications and websites and Verizon and Comcast are under investigation for throttling Netflix.

Despite all the political controversy generated over the issue, the concept of Net Neutrality is nothing new as its principles of non-discrimination date back to the Pacific Telegraph Act of 1860. While it true that the D.C. Circuit has twice stricken FCC net neutrality rules, it has always been on a procedural basis and never on a substance.

Four years ago, the FCC led by then-Chairman Julius Genachowski had the wisdom to embrace Net Neutrality but lacked the political courage to make the legal determinations necessary for its ruling to withstand scrutiny. Even then, however, the FCC warned that under a dual pricing model in which ISPs could charge both the consumer and the content provider, ISPs would "have incentives to allow congestion rather than invest in expanding network capacity" and could prevent innovation by blocking user access to only affiliated or toll-paying content providers. Each of these events is happening now.

Internet Neutrality is essential to maintaining a free and open internet that encourages innovation and robust political debate. If the FCC was correct in 2010 that Net Neutrality was necessary for a free and open internet when it adopted the Open Internet Order, the need for it has only become greater since that time as ISPs' anti-competitive behavior have demonstrated why a strong and enforceable Net Neutrality rule is required.

This is not the time to backtrack. The Commission should finish the job the Genachowski FCC started and not relinquish a free and open Internet out of political expediency.

I am grateful for the opportunity to be among the approximately 700,000 Americans voicing their concern over this rule and ask that you give heed to their voice. The “netizens” of America are calling out and declaring the concept of a tiered internet as tantamount to creating a cyber-Berlin Wall separating the haves and have-nots and the truly-free and those subject to an illusion. The world erupted in elation when the Berlin Wall fell twenty-five years ago, why would we now seek to impose its squalor in cyberspace?

Bennet G. Kelley

Founder, Internet Law Center 
Host, Cyber Law & Business Report
 Past Co-Chair, California Bar Cyberspace Committee

Note: The views expressed herein are my own personal views and do not necessarily reflect the views of any client, WebmasterRadio or the California Bar.