Are You For Net Neutrality, and Against Government Regulation?

requiring the Internet service providers (ISPs) — the phone, cable and satellite companies — to treat all content flowing through their pipes the same, restricting none and favoring none. They cannot charge different rates for differing content, whether it is your e-mail or full movies streamed by Netflix.

But federal courts have twice struck down those rules saying the FCC has overstepped its authority. Their position is that companies such as Comcast, Verizon and AT&T should be free to charge what they please for delivering to our computers, tablets and smart phones content from companies such as Netflix, Amazon and Google's YouTube.

After wrestling interminably to find a solution that would satisfy the courts, after coming up with a hybrid to satisfy both sides that no one likes, after being engulfed by the largest outpouring of public comments in history — over four million submissions — the five-member FCC board was stunned by President Obama suddenly urging the commission in early November to go all out and tie the Internet to the mast of public utility law to keep big corporations from throwing net neutrality overboard. Obama is advocating that the FCC reclassify the ISPs not as “information services”, the term it now uses, but as “common carriers” under the Communications Act of 1934 which prescribes that all users of the ISPs be treated equally and indiscriminately.

That is anathema to the Verizons, Comcasts and AT&Ts and their lobbyists flooding Washington corridors. Why should they have to pay to build the equipment infrastructure to provide the voluminous bandwidth needed to stream those movies without being allowed to charge extra?

Polls have shown the public to be all over the map largely because of how questions are phrased. Most recently a Rasmussen poll said 61% were against net neutrality, but the question they answered was "Should the Internet remain 'open' without regulation and censorship or should the Federal Communications Commission regulate the Internet like it does radio and television?" Not surprisingly, respondents recoiled at government regulation not realizing that "open" means corporations can do as they please whereas placing ISPs under public utility rules is meant to preserve net neutrality.

Amplifying the confusion, Texas Republican Senator Ted Cruz got it all wrong in this Washington Post op-ed warning us of "threats from Washington to stifle freedom, entrepreneurship...in the form of crushing taxes, rules and regulations".

Quite the opposite, the fear is that if there be no rules, leaving corporations free to develop tiers of paid Internet access, the egalitarian nature of the Internet will be fragmented into haves and have nots. Large companies will cut payment deals that guarantee their content will always be fast-tracked so that there will be no “buffering” pauses in their movies and videos. Other users will be side-tracked until the express has gone through. And indeed, no sooner than the court had struck down the FCC rules than Netflix agreed to pay Comcast for just such specially expedited flow-through.

Removal of the equal treatment that has allowed innovation to flourish and new ideas to arise could pose difficulties for fledgling companies trying to compete with prosperous, established Internet titans that buy heightened service that the newcomers cannot afford.

But why shoudn't those titans pay for the heavy burden they place on the ISPs, goes the counter-argument. At any given moment they are sending entire movies to hundreds of thousands of households poaching on another company's costly infrastructure yet paying no premium.

But if ISPs are left free to become toll gates might the Internet slowly degrade into price lists for everyone, charging the YouTubes and the Hulus and the Spotifys based on how much data they transmit. Or to cover the cost of those heavy downloads might the ISPs also switch from the mostly flat fees they charge consumers today for Internet access to “net-metering”, where a Verizon or a Cablevision sends us a monthly bill for exactly how much bandwidth we used? That may be just routine capitalism, but having to fret over how much time we spend with Facebook, Yahoo or Twitter, or whether the volume of e-mail we send and receive is getting out of hand, is an outcome no one wants. It would mark the end of so much of the free exchange of ideas and information throughout the world that has made the Internet so valuable a medium.

The FCC’s option of declaring the providers “common carriers” gets rid of all these complications. Declaring that the ISPs must accept everyone as equals irrespective of volume is so much simpler. Unfair, perhaps, but you could make the argument that it’s the give back the ISPs owe to society in return for their near monopoly status in the areas where they operate.

Except there’s a problem with that, too. What inducement is there for those ISP companies to build out their infrastructure to accommodate the ever expanding stream of data uploads and downloads? Why should they be expected to subsidize the free ride of the content companies? We saw that right away when AT&T, reacting to the President's salvo, returned a bow shot, announcing it has paused its planned investments in high-speed fiber-optic cable networks. The result will be deteriorating Internet delivery that will cause the U.S. to lag still further behind other countries. (As it is, we rank 30th in the world, 70% slower than the leader, Hong Kong.)

So, faced with deciding which plan to decree, the board of the FCC must deal with a Gordian knot that every attempt to disentangle meets with backlash. Following Obama's intrusion, no wonder that the New York Times reports that FCC Chairman Tom Wheeler is "testy, defensive and a bit angry".

There will be global repercussions for whatever course the U.S. takes, There is an irony of enchaining the ISPs in public utility regulations to keep the Internet free. Other countries will point to "government control" to justify their doing the same the U.S. That will sanctify the practices of countries like Russia and China who today are at least chastised for violating net neutrality when they snoop on search words and block access to sites. They chafe at U.S. control of the Internet — never mind that it is a U.S. invention. Russian President Vladimir Putin has for years been working to upend a 1988 agreement between 114 countries that left the Internet unfettered. The specter of a future in which Russia or China gets to set any Internet rules says the U.S. should not relinquish any control.