Good Neighbors. Great Lawyers.

Few happy with new Internet regulations

By Cheryl Gill on Monday, October 17th 2011

With lines like "Save the Internet" and "Join the fight for Internet Freedom," the rhetoric surrounding network neutrality may lead some to believe their very basic freedoms of speech and information access are at stake. It doesn’t help that the other side comes back with threats of job losses and the end of innovation as we know it.

Essentially, the "net neutrality" movement seeks to prevent Internet service providers from blocking competitive content, charging for faster connections to certain sites and implementing other practices that would essentially create a pricing structure for web content, a pricing structure some have called "a pay-for-play platform."

The Federal Communications Commission released new net neutrality rules late last year. The rules entered the Federal Register last month, and they are now scheduled to become effective Nov. 20. That is if lawsuits don’t block them. The rules, as written, leave both proponents and opponents dissatisfied.

Net neutrality rules establish three protections:

  1. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics and commercial terms of their broadband services.

  2. Fixed broadband providers may not block lawful content, applications, services or non-harmful devices; mobile broadband providers may not block lawful websites or block applications that compete with their voice or video telephone services.

  3. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The problem for proponents is that the rules exempt too many parties, including Apple’s Store and Google’s Android Marketplace and especially mobile Internet—at a time when mobile broadband is growing faster than wireline Internet. The rules as written allow mobile ISPs to deliberately slow or block an Internet service when accessed from a smart phone. They also allow ISPs to charge extra for certain online services, such as Facebook, a practice proponents call discriminatory.

Opponents, on the other hand, say that this sort of government intervention is the first step toward losing the open web. Republicans like Senator Mitch McConnell (R-Kent.), who are already planning a repeal, further suggest that the rules will stifle innovation and lead to job losses. Rep. Mary Bono Mack (R-Calif.) went so far as to call it a "federal pat-down of the Internet."

Opponents stand on solid ground when you look at the evolution of earlier technology. The airwaves of television were given to providers as long as they agreed to certain rules, and viewers didn’t have to pay a fee to see a broadcast. Then came basic cable and premium cable. People who wanted access to more options paid more at different tiers to get it. They still do.

In any case, proponents and opponents alike wonder whether the FCC has the power to enforce the rules. And where there’s no enforcement, there may as well be no rules.

The House of Representatives voted to overturn the rules in April, but experts don’t expect passage in the Democrat-controlled Senate, and President Obama said he would veto the legislation if it were to pass.

As for now, both sides have a point. Net neutrality proponents want a true information superhighway with no tolls. They worry that a tiered Internet controlled by phone and cable companies will allow those companies to determine which content users can access, allow wealthy corporations to prioritize their content over others who can’t afford to pay as much, and, ultimately, lead to an oligopoly. 

Opponents meanwhile don’t want to make it easier for users to access competitors’ content. You can really blame Microsoft for not wanting customers using its service to access Google. And it’s understandable that Internet service providers want to charge more to customers who eat up bandwidth and drag down the speed of their services.

The problem is the issue, like so many others these days, has entered the political realm. That means decisions about it are far more likely to be based on ideology rather than practicality. It also means courts will likely be the ultimate decision makers.

Originally published in the La Crosse Tribune, Oct. 16, 2011.  Reprinted with permission.

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