government relations help desk

We Can’t Afford To Be Neutral on Net Neutrality

In Competition, Do-Not-Deliver, Do-Not-Mail, FCC, FTC & DOJ, Network Neutrality, Uncategorized on August 12, 2010 at 11:55 am

From my column in the upcoming edition of INK, the national trade journal of the Association of Free Community Papers:

The Google-Verizon “internet pact” — or “joint policy announcement” on “guiding principles” or self-serving internet carve-up or whatever it’s being called by the time this article goes to press — is a fundamental game changer. The good news is that the canaries have finally escaped from the mines and they’re flapping in the light of day. The exposure and reclarifications of private negotiations and agreements between two giants on the provider and search-video-advertising sides of the internet, put a fresh public face on all the back-room deal-making and denials of the substance of same. Their joint, “this is not a business arrangement” plan for a new parallel, pay-to-play fast-lane internet, with corresponding application blocking, content discrimination and toll booths for mobile broadband, has finally focused policy and jurisdiction where it needs to be.

The Google-Verizon scheme may change endgame in a way that Comcast’s actions — blocking lawful data, denial of blocking, subsequent admission of and reprimand for same, and then major court victory to do it again anytime without consequence — should have already transformed the policy debate on the uncertain future of the internet.

I’ve been preaching about preserving an Open Internet for several years now. During that time, the structural need for clear and fair rules on the information superhighway had smoldered on the back burners of regulators and Congress. Most discussion and analysis had been limited to passionate geeks, much of it buried in tech mags and blogs. All the while, our industry was legitimately more concerned with the pressing need to embrace immediate digital realities and seize opportunities to monetize our online offerings. In a presentation a couple years back on defending threats to distribution — including rack theft and fees, local litter laws and do-not-mail — I detailed the need to begin fighting against new toll booths that providers were quietly preparing to place on data over broadband. It has long been clear that if the major cable-telcos had their way, they would operate much like Dominion and DistribuTech do with print, in their practice of monopolizing high traffic locations and then extorting those using the demand distribution model.

Similar analogies could be made to local delivery laws favoring certain publications over others, or the USPS jacking rates disproportionately on Saturation or relegating our class to a new 14-day delivery window. Major difference here is options: With our print products, each scenario could be fought separately through numerous channels. Outcomes could be challenged and even failing that, each model of distribution still serves as a next-best fallback option. But in the digital world, a handful of companies control the pipes and 97% of our readers get their broadband at home — if they get it — from either a monopoly or duopoly provider. Putting that back in Dominion and DistribuTech context, applied to internet there’s no 2nd Option so we’d basically be held hostage.

Until the landmark Comcast decision in April, most ISPs kept any blocking and traffic tampering limited and discreet enough to keep public attention away. Collectively, the handful of major cable-telcos abided by the concept of Open, Nondiscriminatory Networks and the notion that the Federal Communications Commission had at least marginal authority to serve as cop on that beat. That tenuous power to enforce was actually a matter of faith written in Crayon when the FCC enacted rules between 2002 and 2005 that classified broadband as a magically bundled, fluffy information service. Abandoning sight of the critical communications component — the end to end transmission of digital data — shifted the FCC’s regulatory authorities onto quicksand. And it simultaneously put thousands of independent ISPs on the short end of the competitive stick and ultimately out of business.

The anything-but-Comcastic court ruling was bound to happen at some point. The Commission had finally begun a formal, public process to preserve an Open, Nondiscriminatory Internet when the legitimate authority they gave away mid-decade led to crushing defeat in the D.C. Circuit. To get out of the quicksand and onto solid ground, the FCC recently began seeking public input on ways to reclassify the transmission of data component of broadband as a communications service, among ways that it could legitimately regain authority to preserve the principles of Network Neutrality. It is important to note that the Communications Act gives the Commission this Rulemaking authority and the Courts have upheld the preeminence of expert agencies generally. And on the critical issue of end to end transmission of digital data, Supreme Court Justice Scalia has already opined that the Commission could separate the delivery from the pizza.

We have been actively participating in the public sausage-making at the FCC, filing comments and educating senior advisors on the competitive threats we’ll face on a web of arbitrary, capricious and pay-to-play fast and slow lanes. As the major ISPs have gone to Congress seeking to block and otherwise stall the transparent process at the FCC, we’ve made our case on the Hill, stopping procedural games like attempts at agency defunding. Through our collaboration in broader coalitions, we were represented on the seat speaking for small businesses and consumers at private stakeholder meetings. The Google-Verizon private deal-making put the final straw on top of mounting frustration over broader, but still limited private deal-making, leading the FCC to scrap private talks and get back in earnest to the open, public process well underway.

Meanwhile, the substance of the Google-Verizon scheme has helped immensely in cutting through the smoke screens crafted by the cable-telco lobby on the Hill, as well as poke major holes in their aggressive public relations campaign. The next couple of months will be critical in the fight for fair competition through an enforceable framework that preserves the openness and freedom of the internet. While most activity will take place in D.C., publishers can still help in a few productive ways. Editorials explaining what’s at stake and debunking common myths would be great, and if a public hearing or Commissioner-attended forum comes to a town near you, promoting and attending would be most helpful. Efforts will continue to be made by major ISPs to try to get Congress to stall the FCC, and here publishers could let their members know that the Commission should instead be encouraged to move their open, public proceeding towards a timely, favorable conclusion.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: