A Spineless FCC Won't Protect the Internet Backbone

What if the World Wide Web, right now, is the best it will ever be?

What if, in five years we look back on 2014 longingly as a time when Netflix flowed like water, when we didn’t have to pay extra to see shows that Bell and Rogers didn’t produce and when startup video shops and alternative news sites didn’t have to cough up exorbitant fees to have their content put in the “fast lane” of the digital pipes the carriers owned.

What if, in fact, the internet of 2019 is more like commercial broadcast TV is today, where prime time goes to the high-paying shows or content the carriers own the rights to, late night is full of infomercials and community voices are only heard on low-budget cable shows.

That’s exactly what cable and telephone companies in Canada and the U.S. have lusted after for years - an internet they control. And, last week a toothless and gutless Federal Communications Commission seems to have written the first act of their wet dream.

But, let’s back up a bit. It’s important to understand some basic ideas here, the most important being net neutrality.

Let’s imagine the Internet as a series of beer taps in a pub. You, as a patron, request your favourite brew (let’s call it Old Rainbarrel) and the barman pulls you a pint.

But what if the barman was also the brewmaster of one of the beers he carries, one called “Bud’s Suds”.  Now it would be in his interest to say, “Sorry, the Old Rainbarrel is barely trickling from the tap tonight. I’d suggest you try Bud’s Suds, plenty available and quick!”. And, what if things got worse? What if the publican not only wanted you to pay for your beer but went to the makers of Old Rainbarrel and said, “You know, I could get your beer flowing a lot faster if you just pony up a thousand a month.” If Old Rainbarrel, a microbrewery with little capital, couldn’t pay, the bar owner would keep a kink in the hose to the Rainbarrel keg.

The publican is not practising beer neutrality. Instead of being an indifferent conduit of your beer, he’s controlling the flow of the brew, and favouring product that he makes, or the product of a company he cuts special deals with. Nobody but the bartender and his corporate buddies think that’s a good idea, but that’s what the FCC is about to let U.S. broadband carriers do to the Web.

The FCC is circulating draft plans to allow AT&T, Comcast and Verizon to charge companies a premium for access to the high speed pipes on their networks so long as that premium is “commercially reasonable”. The term is as vague as it sounds. The FCC used that language because, in January a federal appeals court ruled that the commission lacks the authority to require internet service providers to treat all traffic equally because, in the U.S., broadband provision is considered an “information service” not a telecommunications service, and so the FCC can’t require net neutrality. So, instead of doing what most critics argue they should, and declare broadband a telecommunications service, the FCC is trying to weasel word their way into pretending to protect neutrality. 

The FCC’s chairman, Tom Wheeler, argued in a blog post last Thursday that the draft proposal does not threaten net neutrality, does not put smaller content providers at risk and, at the same time, does protect the open Internet and the consumer.

But, Wheeler has a large credibility gap to overcome with his critics. For a decade he headed up the CTIA, the main D.C. lobbying group for the wireless industry. And, Wheeler isn’t the only FCC executive with carrier roots. According to vice.com, a key FCC advisor, Daniel Alvarez was previously a lawyer for Comcast. In 2010 he wrote to the FCC protesting net neutrality rules. And, another senior FCC counsel, Phillip Verveer, also worked for Comcast and represented CTIA and the National Cable and Telecommunications Association prior to his FCC appointment.

On top of that, Comcast has at least 100 lobbyists in Washington. So, it comes as no surprise net neutrality supporters feel the deck is stacked.

But what does all this have to do with Canada? Canadian carriers have already demonstrated that they give preferential treatment to their own content. throttle bandwidth, degrade competing VOIP services and ignore net neutrality. If the FCC plan goes ahead, there is no doubt Canadian carriers will look for a similar loosening of net neutrality rules from the CRTC in order to compete. And the CRTC has demonstrated little backbone when faced with the entries of Bell, Rogers et al. Plus, a lot of Canadian web traffic goes through U.S. servers would be subject to any FCC decision. However, as Ottawa-based lawyer Michael Geist points in a recent blog post, it will be harder for Canadian telecos to escape the more stringent Canadian requirements for net neutrality, if the CRTC enforces them. 

Net neutrality advocates in the U.S. are fighting FCC to reclassify broadband provision as a telecommunication service. In Canada openmedia.ca is advocating for an open internet as well.

If a net neutrality matters to you, pay attention,  take action and, while you’re at it, support your local microbrewery and make sure it can keep flowing, because Bud's Suds tastes like bathwater.