FCC stumbles on the path to an open Internet

Posted: May 19, 2014

The Internet's biggest stories last week - news about the 'Net, that is, not Turkish mine disasters, California wildfires, or the latest lunacy from NBA owner Donald Sterling - unfolded on two continents, thousands of miles apart. But both offered a valuable reminder of something easily forgotten: We're still in the early days of a world-changing technology, and still struggling - often against some mighty interests - to get it right.

In Luxembourg, Europe's highest court came down hard on Google over people's rights to have their past misdeeds fade away as they used to, rather than be dredged up forever on search engines at the click of a button.

In Washington, the Federal Communications Commission came up short, so far, on protections for network neutrality, probably the wonkiest term ever for a topic that can stir the anger of people who barely understand it. At least it's right up there with fracking.

Privacy may turn out to be the Web's biggest issue ever - ask me in another quarter-century, when we're either all connected in ways barely imaginable today, or half of us have rebelled and live off the grid.

But in the short run, the more pressing issue is the one the FCC is grappling with, both in plain sight and behind the scenes: Whether it has the will to keep an "open Internet" thriving for us all when the network's guts are owned mostly by a handful of rich, politically savvy companies.

Tim Wu, the Columbia University law professor credited (or blamed) with coining the term network neutrality more than a decade ago, says he came to the concept after witnessing how technology threatened to undermine the Internet's promise.

Fascinated by technology and coming off a pair of prestigious legal clerkships, Wu went to work for Riverstone Networks, a Silicon Valley start-up that made industrial-size routers capable of blocking or prioritizing traffic from particular websites.

On a business trip to China, Wu was disturbed to learn why that country was so interested in Riverstone's routers: They could help Chinese censors squeeze off traffic from pro-democracy or dissident websites.

But he was also distressed to see how Riverstone was pursuing its home market: with a pitch for "paid prioritization," which would enable an Internet provider to offer faster service to sites that paid a premium - the same profit model roiling debate at today's FCC.

"We were trying to sell fast lanes - to convince the carriers that this was the path to the future, and I just didn't like it," Wu told me last week. He still doesn't, and he's convinced most Americans favor a neutral Web. "That's how most people think the Internet works," he says.

That may be, but the FCC continues to stumble trying to enforce neutrality via the "light touch" regulation it's favored since the Bush administration - a strategy, reliant on its so-called Title I authority over "information services," that was rejected again in January by a federal appeals court. Under mounting pressure from open-Internet advocates, chairman Tom Wheeler laid out a course on Thursday that raised more questions than it answered.

To address the court's objections, his proposal would allow fast lanes, so long as affiliated companies aren't favored. Comcast, for instance, couldn't offer a deal to NBCUniversal, which it owns, without offering the same to other networks.

But Wheeler's FCC majority now says it "will seriously consider using its authority" under Title II of the federal law it enforces - what Wu calls its "16-inch guns." That's the path, reclassifying Internet providers as "telecommunications services," that the telecom giants most fear and Internet activists most favor.

Harold Feld, Public Knowledge's senior vice president, says Title II would allow the FCC to enforce stricter neutrality rules and is the obvious path for regulating a business that once looked like a luxury but today is an essential means of telecommunications.

"As a result of consolidation, it's come to the point where five or six companies making the wrong decision can take down the entire infrastructure," Feld warns. "This is just too important to just trust to the market - too much depends on it."

To weigh in: fcc.gov/comments or e-mail openinternet@fcc.gov.


jgelles@phillynews.com

215-854-2776 @jeffgelles

www.inquirer.com/consumer

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