What You Need to Know About the FCC’s Open Web Plan

Chairman Julius Genachowski finally spoke this week. Few are pleased with what he said.

By Jamilah King Dec 03, 2010

Federal Communications Commission Chairman Julius Genachowski let the world hear about his long-awaited net neutrality plan on Wednesday. The proposal is an attempt to formalize net neutrality, a long-held informal principle that anyone should be able to access anything on the Internet without prohibitive costs or outside interference. While the actual proposal still hadn’t been made public as of Friday morning, Genachowski laid his plans out in a speech on Capitol Hill late Wednesday. The chairman said the effort builds on a controversial attempt by Rep. Henry Waxman to deal with the issue earlier this fall that was later abandoned. But while big telecom companies applaud Genachowski’s plan, longtime advocates of net neutrality aren’t nearly as satisfied.

What are they so upset about? They charge that Genachowski has sold Internet users short on promises both he and President Obama made when they took office. 

Josh Silver, who’s president of advocacy group Free Press, penned an editorial in the Huffington Post Wednesday calling the proposal a fake. That was pretty mild, considering the reaction of Marvin Ammori, visiting scholar at Stanford Law School’s Center for Internet & Society, who called the proposal "garbage." "Julius Genachowski has a reputation in D.C. of being a ‘tepid’ regulator," Ammori wrote on the Huffington Post. "He’s living up to that reputation." And James Rucker, executive director of Color of Change, used news of the proposal to take aim at black lawmakers whom he claims are beholden to the interests of big telecom companies more than their constituents.

Meanwhile the Open Internet Coalition (OIC), a pro-regulation interest group that includes some of the world’s largest Internet companies, including Facebook, Google, Twitter and Skype is also displeased with the plan. The groups have reportedly spent tens of thousands of dollars on ads to run this week on D.C. publications The Hill and Politico that take aim at Genachowski’s compromise. "Our companies, public Internet groups, and millions of Americans are united in support of real Net Neutrality without paid prioritization that applies to wired and wireless connections."

"We’re very skeptical and concerned about this proposal," said Benjamin Lennett, a senior policy analyst at New America Foundation, also a member of OIC. "The chairman says all the right things, but when we hear the actual details and language, we have deep concerns about what this is really going to do."

So what are some of those details? And why do they matter? We’ve highlighted some key components of the chairman’s proposal and taken a look at where they potentially fall short.

Meaningful transparency. The proposal reportedly begins with this requirement, which would allow users to keep tabs on the type of broadband service they’re getting from providers, and make informed decisions about where to spend their money. It’s an important requirement. The U.S. already has laughably slower broadband speeds than most other developed nations, and in August the FCC found that actual broadband rates in the country are typically about half of what telecom companies advertise.

Companies can’t block lawful content. "Consumers and innovators have a right to send and receive lawful Internet traffic–to go where they want and say what they want online, and to use the device of their choice," Genachowski said on Wednesday. So the Tea Party Express and Antoine Dodson can coexist on the Web, and users can access both sites at the same speeds.

Service providers can’t discriminate. This seems simple enough: service providers wouldn’t be allowed to pick and choose which content gets delivered faster than others.

But longtime supporters of net neutrality note that the plan doesn’t explicitly single out paid prioritization, a financial arrangement that allows third-party content owners (say, the New York Times or Fox News) to pay Internet service providers (Comcast, Verizon, AT&T) to jump ahead of other users when Web traffic is especially heavy.

Such an effort, says Joe Torres, senior adviser at Free Press,"creates a two tiered Internet and a total shift." That shift, Torres says, favors wealthy content owners who have the money to pay for higher speeds. But here’s where things get especially tricky.

Reasonable network management. Genachowski contends that service providers still need incentives, and according to him a big one is allowing companies to maintain some control in the big scheme of things. The idea is this: Telecom companies create jobs and ultimately have the power to widely expand broadband access to rural and urban markets. Those markets are currently some of the most disconnected, and tend to include more low income users and people of color. That massive build out is key to the FCC’s National Broadband Plan, which hopes to expand broadband to 100 million users in 10 years. But in order do that, telecom companies–and now Genachowski–argue that providers need to be able to control the flow of traffic on their networks. Network management allows them to do just that.

The question is: What’s considered "reasonable"? That definition can be subjective, and net neutrality advocates are urging the commissioner to come up with an answer that’s free of potential loopholes.

Mobile broadband’s still up in the air. The future of broadband is literally in people’s hands. Wireless devices are skyrocketing in popularity and leading the charge in innovation (iPad, anyone?). And mobile Internet has also proved important in making incremental gains in closing the digital divide. But can and should principles of net neutrality relate to them? For advocates of the policy, it’s a no-brainer: Of course the same rules should apply. But opponents argue that mobile technology is still too new to really know what’s possible, and any regulations could ultimately stifle its development. To this end, Genachowski announced that his proposal takes "important but measured" steps on mobile broadband.

What happens now?

The commission will take public comments until Dec. 14, and vote on the proposal on Dec. 21. Over the next two weeks, net neutrality proponents will be pushing the commission to make changes to the proposal. The focus of that push will be Commissioners Michael Copps and Mignon Clyburn, two Democrats who have spoken out loudly across the country in favor of regulation. Republican Commissioners Robert McDowell and Meredith Attwell Baker called Genachowski’s proposal "reckless" and are arguing that the FCC doesn’t have the authority to act. And come January, when Republicans take over the House, they’ll have plenty of company. Rep. Marsha Blackburn recently spoke out against net neutrality, and Rep. Fred Upton, the leading contender for chairman of the Commerce and Energy Committee, urged the commission to "cease and desist" net neutrality.

"What remains to be seen is how much Commissioners Clyburn and Copps will push to strengthen this order," Benjamin Lennett said. "This is clearly an issue within FCC regulatory purview, but Congress is deeply influenced by the lobbying of the largest telecoms in this country."

What power does the FCC really have, anyway? 

For all of its grand gesturing, the FCC’s walking a very thin legal line, according to some observers. A federal appeals court sided with Comcast in a ruling last April that found the commission didn’t have the legal authority to regulate broadband in the first place — a holdover from anti-regulatory measures adopted by the agency on former President Bush’s watch. The answer to that problem seemed like another no-brainer: the commission just needed to reclassify broadband as a telecommunications, and not a consumer, service. Despite the urging of public interest groups, Genachowski’s been reluctant to make the move, a position that’s led some pro-regulatory watchers to accuse him of compromising too much to telecom companies’ demands. And based on what the chairman said about his new proposal this week, he doesn’t seem to be flinching on the matter.

"After considering the staff’s additional legal analysis and the extensive comments on this issue over the last year, I have decided to ground my proposal in a variety of provisions of the communications laws," he said in his speech on Wednesday. "But not to reclassify broadband as a Title II telecommunications service. I am satisfied that we have a sound legal basis for this approach."

Some observers aren’t so satisfied.

"The FCC had every legal and statutory right to immediately reclassify broadband after the Comcast decision," said Lennett. "Within that framework they have a lot of authority. They didn’t go that route."

Now the fear is that companies could continue continually challenge the FCC’s authority — and win. Between now and December 14, the pressure’s on to get the chairman to revise his proposal with an order to reclassify broadband, and he’s got at least one chairman urging for that to happen. Commissioner Copps told an audience at Columbia Journalism School on Thursday night that net neutrality requires reclassification.

"These rules must be put on the most solid possible legal foundation and be quickly and effectively enforceable," said Copps, according to the Washington Post. "If this requires reclassifying advanced telecommunications as a Title II telecommunications… we should just do it and get it over with."