Why everyone hates new net neutrality rules—even NN supporters

Dec 21, 2010

It's no surprise that those who have always opposed net neutrality weren't pleased with today's FCC order instituting it—one expects no less—but the sheer vehemence of the objections was still surprising. Republican FCC Commissioner Robert McDowell unleashed a biblical jeremiad against the order, accusing the FCC of becoming a "vigilante" which was taking this action only to help President Obama meet "a misguided campaign promise."

Today was one of the "darkest days in recent FCC history," he said, adding that he had received a final draft only at 11:42 pm the night before the vote. As for ISPs, "Nothing is broken in the Internet access market."

He ended darkly by noting that the FCC's "regulatory hubris" was a disease that could, thankfully, be cured by the courts.

His GOP colleague, Commissioner Meredith Baker, had no less than seven major objections, including one that "we have turned prioritization into a dirty word." To Baker, charging companies like Netflix for better access to ISP customers is unabashedly pro-consumer, since it might (insert a gentle cough of skepticism here) lower consumer broadband prices. As for network management, it's an "engineering marvel." Baker's statement made clear—repeatedly—that she was bewildered by any view of ISPs as huge companies that might misuse their power and control, and she rejects any attempt to limit their "innovation."
We don't like it, either

More surprising were the howls of dissatisfaction coming from net neutrality's backers. Didn't they just get what they wanted? Didn't Obama's campaign pledge—and Genachowski's support for that pledge—finally come through?



"Despite promising to fulfill President Obama's campaign promise of enacting Network Neutrality rules to protect an open Internet, the FCC has instead prioritized the profits of corporations like AT&T over those of the general public, Internet entrepreneurs, and local businesses across the country," thundered Sascha Meinrath of the New America Foundation. "These failures place the Internet in peril of evolving into a system that will more and more resemble another cable network rather than an open Internet."

Public Knowledge's Gigi Sohn blasted rules that "fall far short of what they could have been." Free Press called the rules "fake net neutrality," and the group's Craig Aaron complained that "the new rules are riddled with loopholes, evidence that the chairman sought approval from AT&T instead of listening to the millions of Americans who asked for real Net Neutrality."

The American Civil Liberties Union (ACLU) said that "the FCC has failed to protect free speech and Internet openness for all users," by not applying the same rules to wireless. At the New York University School of Law, the Institute for Policy Integrity called it "a batch of tepid new rules."

Even the Future of Music Coalition, which represents artists, lamented the fact that net neutrality "seemingly falls short of offering full protections."

They don't share Baker's default view of huge ISPs, which dominate the US landscape for wireline broadband, as cuddly companies who would like nothing better than to innovate and invest. And they're deeply disappointed that wireless companies are largely excluded from discrimination rules.

"No longer can you get to the same Internet via your mobile device as you can via your laptop," complained Free Press.

In addition, "paid prioritization" is not banned and "will allow broadband providers to set up a toll road for the largest Internet content and application companies to pay for prioritized access to consumers on the network," said Meinrath.

"Managed services" are still allowed over the last-mile broadband pipe, meaning that broadband operators can sell prioritized IP services of any kind. ("The new but not-yet-properly-defined 'managed service' exemption may amount to the first step down a slippery slope of non-neutral Internet services," said one complainant.)

The rules are full of loopholes and uncertainty (what's "reasonable," for instance?). And the rules continue to use Title I authority for all this regulation, despite the fact that this was dealt a severe blow earlier this year by a DC Court; backers worry that even these limited net neutrality rules will simply be tossed by judges.

After years of effort, one might expect a few more uncorked champagne bottles from net neutrality's backers once they had pushed for as much as they could get; today's grudging statements of support remind us just how limited the final rules are. Indeed, even Commissioners Clyburn and Copps, Democrats who voted for the order, made clear that their own enthusiasm for the plan was modest, especially given its special treatment of wireless.
Solomonic or moronic?

This is probably not the way Genachowski saw himself passing his pivotal net neutrality provisions. A year ago, when he made his pitch for the idea, he made clear that the rules should apply to wired and wireless networks, for instance, and he no doubt imagined a positive reception from at least some side of the debate.

In the end, though, even the support he got from big net neutrality backers was so muted that the whole event felt more like a wake than a celebration. "Damning with faint praise" pretty much sums up the responses from people like Skype's Christopher Libertelli, who said after today's vote, "In any complicated FCC rulemaking, there are going to be trade-offs and compromises. On balance, this decision advances the goal of keeping the Internet an open and unencumbered medium for Skype users."

Huzzah? (As the NCTA, cable's biggest lobbying group, put it with some accurate snark, "like apparently everyone else in America, this would not be the Order we would have written...")

But if Genachowski thought he could play off against the more extreme proponents of neutrality rules to pitch himself as a moderate compromiser who adopts "light touch," pro-investment rules (and he thought he could), he seems to have failed. He secured no Republican votes for his compromise package, he's facing near-certain legal challenges to the entire approach, and Congressional Republicans have been publicly threatening to overturn any FCC net neutrality rules that Genachowski dared to pass.

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