Marvin Ammori

I was on MSNBC’s Countdown, talking with Chris Hayes about the net neutrality order to be issued today.

The message: the FCC Chairman caved to the most powerful interests and is adopting a rule that may end the Internet’s historic openness to all software and content as a level playing field. This will undermine the Internet’s role in as an engine of economic innovation and democratic participation. The rule was written by and for the giants like AT&T, Verizon, and Comcast, who are cheering the rule. And the FCC Chairman is trying to fool the public into believing they should thank him.

I wish I had a happier message.

The FCC Chairman has repeatedly, and relentlessly, deployed his favorite talking point: that he is committed to helping “consumers, competition, and innovators.”

A week from tomorrow, the FCC may adopt a rule on Barack Obama’s signature technology campaign promise–network neutrality. From reports of the rule, it is “fake” or “pretend” net neutrality. The leading advocates of net neutrality have criticized the proposal, and opponents like AT&T and Comcast have praised it.

Yes, that’s like the Winter Queen offering a Christmas proposal and her only supporters being Ebenezer Scrooge and the Grinch. Who are you fooling?

Consumers, competitors, and innovators are coming out against the proposal in force.

Consumers: Free Press, a leading net neutrality advocacy group, is delivering 2 millions signed petitions today from Internet users. Consumers, citizens, speakers … call them what you want, they support an open Internet, not mere rhetoric.

Competitors: A start-up online TV company has filed a letter to the FCC explaining how its business model depends on an open Internet, and therefore depends on the specific details of the FCC rule. Stanford Law professor Barbara van Schewick posts the letter, and explains that Zediva is one of many companies who have expressed these concerns. The letter is worth reading in full.

Innovators: A venture capital investor in companies including Twitter, Meetup, Foursquare, Zynga, and Etsy has posted about the details of a net neutrality rule that could protect innovators. The investor, Brad Burnham, explains some of the problems with the current rule–which could make the Internet more controlled, like cable television in the 1990s. He endorses a framework proposed by van Schewick, which permits certain types of priority, when chosen directly by the user.

And let’s not forget the Open Internet Coalition, which includes Google, Facebook, Amazon, Expedia, and other companies. They opposed the proposal, based on reports.

On the other hand…

The carriers are vocally in favor. It’s like the Grinch cheering Christmas, like oil companies cheering energy reform and low oil prices, like turkeys marching to spread Thanksgiving Dinner to all six continents.

Time Warner Cable: “We would like to commend Chairman Genachowski, and everyone at the Commission, who have worked tirelessly to craft what we believe to be a fair resolution to these complex and controversial policy issues.”

Comcast: “We believe Chairman Genachowski’s proposal, as described this morning, strikes a workable balance between the needs of the marketplace and the certainty that carefully-crafted and limited rules can provide to ensure that Internet freedom and openness are preserved.”

AT&T: “Based on our understandings, this measure would avoid onerous Title II regulation; would be narrowly drawn along the lines of a compromise we have endorsed previously; would reject limits on our ability to properly manage our network and efficiently utilize our wireless spectrum.”

Verizon: “Verizon appreciates the efforts of Chairman Genachowski to seek a consensus on the contentious issue of net neutrality.”

Consumers, competitors, and innovators are speaking: they need more than a relentless focus on rhetoric and misdirection. They, and we, need real rules, real jurisdiction (called Title 2 or reclassification), and effective enforcement.

Here is my post on the FTC’s Do Not Track proposal, participating in a debate with friends like Jonathan Zittrain, Jonathan Askin, Fred Wilson, as well as Jim Harper, whom I don’t know but whose writings I find interesting.

Thanks to Ryan Calo at Stanford and Chris Soghoian for bouncing ideas with me and talking substance. Thanks to Luke Pelican and Noah Robinson as well, for discussing the issues this morning.

Yesterday, I posted what seems like a highly read post about the FCC Chairman’s proposed net neutrality rules (for more about him, see here), why they’re full of loopholes and likely unenforceable, and why they break Obama’s campaign promises.

I called it, FCC Proposes Garbage, Calls it Net Neutrality.

Turns out, I was being too kind.

A few people have let me know two things.

One, the wireless exemption is worse than I claimed. The rule against blocking would apply to voice telephony and video telephony only–not to all video. So AT&T Wireless could block Netflix.  It would have to, instead, degrade (but not block!) video Skype.

Two, on the jurisdiction side, I guessed (in that post) that the FCC was talking about section 706(b) and mentioned my skepticism. Other lawyers marveled at my understatement. And noted that there is probably a notice issue: the FCC is supposed to provide notice of some things before issuing a rule. (A basic requirement of administrative law for rules is notice of the rule and comment on it.) So, I haven’t looked at all the details, but I’ll note the notice problem, on top of the problem that the section might just not apply, resulting in the FCC building its rule on a house of sand.

I posted this the day before the Google-Verizon proposal. I discussed some of the factors for judging a solid network neutrality rule, rather one full of loopholes or built on mush.

A lot of people found it helpful and some suggested I repost this today. Here is a link to the post.

Commissioner Copps’ reputation is the opposite of the Chairman’s–a principled fighter for the public interest.

STATEMENT OF COMMISSIONER MICHAEL J. COPPS

ON PRESERVING INTERNET FREEDOM AND OPENNESS

“It’s no secret that I am looking for the strongest protections we can get to preserve an Open Internet, built on the most secure legal foundation so we don’t find ourselves in court every other month.  Over the next three weeks, I will work tirelessly with stake-holders—including, of course, consumers and Internet innovators—seeking to ensure real network neutrality that protects the online freedom of all Americans.  Today is the beginning of an important discussion, and not the end.  We have an historic opportunity to make sure this dynamic Internet technology reaches its full potential to create opportunity for every citizen.  I hope we will make the most of it.  At issue is who will control access to the online experiences of consumers—consumers themselves or Big Phone and Big Cable gatekeepers.”

–FCC–

The Chairman office’s phone number is 202-418-1000.

How candidate Obama, co-sponsor of net neutrality legislation, explained what he meant by Net Neutrality in his campaign promises:

President Obama’s FCC Chairman, Julius Genachowski, has a reputation in DC of being a “tepid” regulator. From reports of his net neutrality proposal, he’s living up to that reputation.

The proposal does not meet Obama’s campaign promises, or Obama’s other agencies’ actions, on net neutrality. It is “make-believe net neutrality.”

Here are why the proposal is a meaningless gesture.

• It exempts wireless. Like the Google-Verizon proposal, Julius’s makes an artificial distinction between accessing the Internet through a wire and through a wireless connection. No nondiscrimination rule applies to wireless. The Chairman’s fig leaf is to ban “blocking” on wireless, but not discrimination. And this ban on blocking applies only to voice and video technologies–not new and innovative technologies yet unimagined. That is, this proposal is weaker than the Republicans’ 2005 policy principles, which would forbid all blocking; the proposal is nowhere near including a “fifth principle” of nondiscrimination on wireless that Democrats long called for. This wireless exemption comes despite predictions that, within the decade, most users will access the Internet wirelessly. It also comes despite the FCC’s National Broadband Plan betting on wireless to expand Internet access–a bet that would require broadcasters and government agencies to abandon spectrum holdings.Under Julius’ proposal, Sprint Wireless could discriminate against, say, Skype, degrading it to make it less reliable–so long as they don’t block it. Outside voice or video, anything is fair game. AT&T Wireless could make its own social network load faster than Facebook, or could make Fox News or MSNBC load faster than CNN or BBC, based on payments. While Skype, Facebook, and Fox News could maybe fend for themselves, innovative start-ups will be unable to reach wireless users without permission from gatekeepers like AT&T.
• The proposal may not ban paid-priority. A ban on paid priority is central to any real net neutrality proposal, beginning with the Snowe-Dorgan bill of 2006. Indeed, the notion of “payment for priority” is what started the net neutrality fight; in late 2005, AT&T’s CEO said that Vonage and Google had to stop using his pipes for free. The only way a carrier could charge for priority is if basic Internet access was not sufficient for a company to compete; if Yahoo! does need priority to compete effectively, why pay? Without a ban on paid priority, we can expect basic access to deteriorate so companies have to pay for priority.  I am guessing the proposal does not ban paid priority clearly because of earlier reports, and because recent reports refer to “unreasonable discrimination.”  “Unreasonable discrimination” is a term from section 202 of the Communications Act, and has applied to phone companies’ pricing. AT&T has long argued that phone companies could differentially price for access under section 202, so “unreasonable discrimination” would permit charging Google a price for priority, so long as that price were available to all other search engines. This could lead to exclusive deals. AT&T can simply set a high, monopoly-level price for search-engine priority that only Google can pay, one that no upstart (like StumbleUpon?) could afford.
• There may no jurisdiction for any of this anyway. In April, the D.C. Circuit interpreted Title I of the Communications Act narrowly, severely curtailing the FCC’s ability to adopt rules for Internet access. This was the Free Press-Comcast decision, which the FCC General Counsel argued for the FCC and I argued for consumer groups and tech companies. It was a shellacking. After a month of studying the question, the FCC General Counsel concluded the obvious: relying on Title I authority after that case was irresponsible and doomed to failure. The Chairman made a video explaining how the FCC should rely on authority under Title II, which is something that several Justices of the Supreme Court (including Scalia) thought the FCC should have done from the beginning. The Chairman described reclassifying to Title II as the principled center, but without principle, the center keeps shifting.In the proposal, the FCC will not reclassify. It will either build its house on the sand of Title I, citing multiple provisions as it did in the Free Press-Comcast case, expecting an obvious repeat-shellacking. Reports suggest a “new” theory, with “additional analysis.”  Reading between the lines, this may be the theory that was discussed months ago, even before the FP-Comcast decision was issued. This theory, which I remember discussing as early as 2007, rests on section 706 of the 1996 Telecommunications Act (codified at 47 USC 1302). I am skeptical that provision can support net neutrality, even after the negative report described in that section, but I will wait to see the details. Certainly, this is an untested theory, and its scope and outer bounds are unclear.
• Enforcement is unclear. It’s not clear if there are sufficient announced penalties or inexpensive, rapid procedures that start-ups and consumers could actually use.

Despite all these compromises, the Republicans have still come out guns blazing:

Rep. Marsha Blackburn (R-Tenn.) a member of the House Energy and Commerce Committee, said Tuesday afternoon that she would work to topple any FCC-led net neutrality order.

“This is a hysterical reaction by the FCC to a hypothetical problem,” she said, adding that Genachowski “has little if any congressional support” for the action. To overturn any order, Blackburn vowed to reintroduce her bill to prevent the FCC’s policy making process.

It’s like the famous (Lessig) quote: “Sold my soul and nothing happened.”

Because the Federal Communications Commission may (finally) adopt a network neutrality rule in December, the future of an open Internet rests largely on the shoulders of its Chairman.

“Who’s that?” you may wonder.

His name is Julius Genachowski and his reputation in DC is widely known, but is likely less known to the general public. I began writing this post because there are two stories about his reputation that I can’t link to, because they’re not available online. They come from expensive inside-the-beltway publications, the kind that follow executive agency chairmen well enough to provide telling details for lobbyists. The kind of publications few Americans would have access to.

So I figured I would share them here with the general public, and discuss some other news stories about the Chairman as well.

For better or worse, accurate or not, the FCC Chairman’s reputation in DC, Silicon Valley, and Wall Street is this: he is a wimp who doesn’t like to do actual work. He’s more “Diary of a Wimpy Kid” than Harry Potter.

This would be less worrisome if the future of the Internet didn’t rest on his fragile shoulders.

Thin-Skinned: Susceptible to Industry Criticism