Pay to play.
A brief pause for a bomb threat aside, yesterday’s Federal Communications Commission vote to end broadband’s common carrier status as a telecommunications service, and net neutrality rules with it, went as expected. The three republican commissioners voted in favor of the change, the two democrats voted against and all five made speeches explaining why they were voting the way they always said they would vote (links below). There was no indication that the final order approved yesterday differed significantly – or at all – from the draft published three weeks ago.
Commissioner Jessica Rosenworcel, a democrat, warned of the consequences she believes will come…
As a result of today’s misguided action, our broadband providers will get extraordinary new power from this agency. They will have the power to block websites, throttle services, and censor online content. They will have the right to discriminate and favor the internet traffic of those companies with whom they have pay-for-play arrangements and the right to consign all others to a slow and bumpy road.
Now our broadband providers will tell you they will never do these things. They say just trust us. But know this: they have the technical ability and business incentive to discriminate and manipulate your internet traffic. And now this agency gives them the legal green light to go ahead and do so.
There’s already a red flag warning that Comcast, the biggest Internet service provider in the U.S. is preparing to move out of its self declared net neutral zone, something democratic commissioner Mignon Clyburn called out in her speech. In a blog post Wednesday, Comcast’s chief corporate lobbyist fell all over himself promising “all of the benefits of an open Internet today, tomorrow, and in the future”, but then offered a weasel-worded explanation of what that means. What it doesn’t mean is making a categorical promise to not sell fast lanes to content providers willing to pay, and consigning the rest to the slow lane. If you don’t read his words carefully, you might think he did. But he didn’t.
If that happens, there’s not much anyone can do about it. ISPs will have to abide by the same general consumer protection and anti-trust rules as any other kind of company, but broadband-specific standards of behavior are gone and the FCC is handing off its specialist enforcement responsibilities to the ordinary cops on the beat. Which will be sufficient, according to republican commissioner Brendan Carr…
Before the FCC stripped it of jurisdiction, the FTC—the nation’s most experienced privacy enforcement agency—brought over 500 privacy enforcement actions, including against ISPs. By reversing Title II, consumers get those privacy protections back…
Federal antitrust law will protect against discriminatory conduct by ISPs. As a former Obama Administration FTC Chairman recently said, this is a “formidable hammer against anyone who would harmfully block, throttle or prioritize traffic"…
State consumer protection laws will apply and state attorneys general can bring actions against ISPs. These authorities will provide another strong set of legal protections against unfair business practices by ISPs.
There will be a delay, likely a couple of months, before the order officially takes effect. Court challenges will come, but are by no means certain to succeed.
Draft: In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 22 November 2017
Press release: FCC acts to restore Internet freedom, 14 December 2017
Oral statement of chairman Ajit Pai, 14 December 2017
Dissenting statement of commissioner Jessica Rosenworcel, 14 December 2017
Statement of commissioner Brendan Carr, 14 December 2017
Oral dissenting statement of commissioner Mignon Clyburn, 14 December 2017
Oral statement of commissioner Michael O’Rielly as prepared for delivery, 14 December 2017