Marvin Ammori

I published an article today in Slate explaining why the FCC’s most recent apparent direction on net neutrality will fail in court and hurt the open Internet.

I’m not alone. So far, there has been a lot of public opposition to the FCC’s latest trial balloon. The proposals are based partly on an idea put forward earlier in the year, so there has been a lot of commentary on it.

Tech companies have already come out.

• Vimeo: FCC trial balloon is just a new version of the “flawed” rules from May only “this time around the FCC has taken the additional step of overcomplicating the matter.”
• “Tumblr….and other online startups like Vimeo and Etsy are strongly opposed to the hybrid proposal.”
• Kickstarter: “Since this rumored proposal doesn’t embrace full reclassification and allows paid prioritization deals, it’s a non-starter. We — along with millions of Americans — strongly believe that the Internet is a public utility and should be treated as one.”

Press.

• San Jose Mercury News Editorial: “FCC should junk its latest net neutrality plan.”

A major city.

• City of Los Angeles:  Such a proposal “may mean that smaller and start-up edge providers are subject to significant discrimination.”

Digital rights groups, consumer groups, activists are opposed.

• AARP:“proposals to leave the commercial relationship between ISPs and their subscribers as information services is not reasonable” and such a proposal only “proves the need for blanket reclassification.”
• “Fight for the Future delivered more than 75,000 signatures to President Obama calling for him to publicly support Title II reclassification and replace Tom Wheeler if he won’t.”
• Free Press: “Chairman Wheeler can’t wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it.”
• EFF: “is deeply concerned, however, that this ‘compromise’ risks too much, for too little”
• MoveOn: “Wheeler’s new plan would ‘undermine’ net neutrality and ‘betray’ President Obama’s plans to ban ‘fast lanes.’”
• ACLU: “Going with pure Title II, Chairman Wheeler will be pleasing the millions of people who called for reclassification. This hybrid proposal will please no one.”
• New America’s Open Technology Institute: “the Federal Communications Commission (FCC) may be on the brink of not only undermining hope for strong, enforceable and legally sound network neutrality rules, but may also be taking steps that would ultimately disrupt the very principles that have governed the way the Internet has always worked.”
• Engine Advocacy: “The legal approach that the FCC is considering is novel, untested, and conceptually complicated. The plan carries significant legal risk and could end up getting thrown out in court.”

A well-known net neutrality legal expert.

• Stanford Professor Barbara Van Schewick: “It’s either a disaster for the open Internet, or it will be struck down in court.”

The carriers and their vendors don’t like it either. So the FCC’s apparent plan of appeasing the carriers–with a rule that’ll get struck down in court instead of one resting on straight-forward Title II–doesn’t seem to be working.

• Comcast:
  • such a proposal would have a “fatal flaw by asserting that the ‘fee’ for this hypothesized edge-provider-facing service is the one paid by the ISP’s ‘local subscribers.’”
  • that “with the exception of a handful of interconnection agreements…broadband providers do not ‘offer’ anything ‘directly’ to edge providers….Indeed, that is precisely what many proponents of reclassification seem to believe Title II would prevent.”
  • Such a “decision may have much broader effects than direct reclassification” and “could have sweeping and unpredictable consequences, as it may well lead to the imposition of…Title II regulation on large swaths of the Internet ecosystem.”

• USTelecom called the approach “byzantine” and said it “defies legal precedent and common sense.” The proposal “would be an invitation to protracted litigation,” and “would only guarantee continued uncertainty and debate well into the next administration.”

• Verizon states such a proposal:
  • “would mandate that edge providers pay a fee to broadband providers”, “face significant legal challenge and would be unlikely to withstand appeal”
  • would “require a radical unbundling of Internet access service into its component parts—with disastrous consequences for consumers forced to navigate the resulting confusion”
  • is “an unqualified disaster for the Internet community” and “would create a dangerous slippery slope that could implicate players throughout the Internet ecosystem.”
• CTIA states:
  • that “the FCC should not be drawing artificial lines within the Internet that neither engineers nor end users recognize.”
  • that “the arbitrary lines….draw[n] between service to an edge provider and service to the end user do not exist in the real world.”
• NCTA says:
  • such proposals “conflict with technical realities, and their preferred policy outcome (a ban on payments by edge providers for paid prioritization) is at odds with the statutory requirement that a telecommunications service be offered for a fee.”
  • that “even if the Commission were able to overcome the legal and factual barriers and create a contrived partial reclassification scheme, it could not simultaneously advance the proponents’ goal of precluding the imposition of fees on edge providers. Not only does the law not allow for the prohibition of such fees with respect to telecommunications services, but that is a required definitional element.”
  • that sender side proposals are “based on a gross misreading of Verizon decision”, “any attempt to accord differential regulatory treatment to “request” and “delivery” transmissions would make little sense as a practical matter”, “The nature of packet-switched communications the mechanism on which Internet Protocol communications are based, would render such distinctions utterly unworkable”, and “are riddled with fundamental factual and legal misconceptions and should be rejected”
• Akamai said a sender side proposal “will do far more harm than good to the goal of an Open Internet.”
• Cox Communications found that “such classification would be contrary to the text of Title II.”

Mozilla and Tim Wu, which initially proposed very different variants of the idea, believe straight-forward Title II is better.

• Mozilla: “choosing between the two, we prefer reclassification as the simplest, cleanest path forward”
• Wu: “I tend to think Title II is the simplest way of doing this. There could be other ways to combine regulatory authority. The Commission has a way to get too clever sometimes and trying to find a magic bullet approach … and when it gets to the courts it gets struck down. It’s important to be wary of getting too clever in order to please every constituency in Washington. When it comes to the courts, Title I, or Section 706, has always been a weaker authority.”