Potential loss of net neutrality threat to all

CECILIA KANG
Last updated 17:47, May 16 2014

Silicon Valley once cheered the election of President Barack Obama, comforted by his stance that internet service providers should be banned from charging web sites like Facebook or Netflix for faster access to American homes.

And for much of the last six years, tech firms felt shielded from the possibility that the internet would ever have slow and fast lanes for traffic.

But on Thursday, the US government is poised to vote on a plan that could make that scenario a reality. Tom Wheeler, a Democratic Obama appointee, is pressing new rules at the Federal Communications Commission that would allow an internet service providers to charge YouTube, for instance, for higher-quality streaming of videos.

The proposal has sparked an outcry of protest from Obama's earliest supporters - consumer advocates, high-tech firms and investors, and Democratic lawmakers.

The FCC, which for years only heard from a handful of phone companies on its policymaking, has been flooded with more than 100,000 emails and calls to commissioners' offices from consumers voicing concern about protecting the principle known as net neutrality, which says that all content should be treated equally online.

This week, a small group of demonstrators camped in tents outside the agency, calling for Wheeler to drop his "pay for play" rules. A question and answer session this week on Twitter with one of Wheeler's top aides made #FCCNetNeutrality one of the top terms on the site for the Washington region.

Silicon Valley is "very frustrated," said Marvin Ammori, a technology policy consultant who helped organise a letter of protest to the FCC from more than 100 tech startups and big companies including Google, Facebook and Yahoo.

Ammori said the tech community picked Obama over Hillary Clinton in the 2008 primaries after he aggressively courted them, partly with his stance on the internet. "They were the only really rich people in 2008 who weren't already rich in 1996 and therefore not part of the Clinton family legacy," said Ammori.

The FCC is an independent agency, as White House spokesperson Jay Carney pointed out when asked about Wheeler's plan earlier this week. Carney added that Obama still supports net neutrality and "will be closely following developments as the FCC launches its proceeding."

The plan is expected to get enough votes to move forward, with support likely coming from Wheeler's two fellow Democrats on the commission. (The agency's two Republican commissioners have opposed any attempt to regulate the internet from the beginning.)

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The next phase would be four months of public comments, after which the commissioners will vote again on redrafted rules that are meant to take into account public opinion. But the likelihood of final rules being enacted faces significant challenges.

The proposal has sparked a massive fight between two of the most powerful industries in this country: on one side, Silicon Valley, and on the other, companies that built the pipes delivering videos and websites to consumers' homes.

Investors and executives from telecom firms and Silicon Valley have met with commissioners in recent weeks, picking apart the chairman's plan. The telecom firms say that without the ability to charge tech and media firms, they will not have enough money to invest in faster pipes for consumers.

Critics say the agency, under Wheeler's predecessor and another Obama appointee Julius Genachowski, botched its earlier plan to institute net neutrality rules that would have reflected Obama's views. That attempt was struck down by a US Appeals Court in January.

The FCC's repeated stumbles and the stark retreat from Obama's original goals reveals the thorny challenge of creating first-time regulations for the internet - the very medium that has created rising populist campaigns in Washington.

Critics say rules crafted by Wheeler would be the first time the government explicitly permits internet service providers to create online fast lanes for the highest corporate bidders. Startups would be at a distinct disadvantage over giants Facebook, Netflix, and Amazon who could afford to pay for better access to consumers.

Consumers could see higher costs for search, listening to music and updating social networks as companies such as Kayak, Spotify and Facebook try to recover expenses from doing business with internet service providers.

"The Chairman's proposal to permit paid prioritisation and discrimination will change the relationship between creators and investors," Brad Burnham, a New York venture capital investor in Twitter, Tumblr and Zynga, wrote in a filing after meeting with FCC commissioners. "I can't imagine that we will risk our investors' capital in companies that will now be vulnerable to the whims of a gatekeeper that has the technology and incentive to discriminate against our companies' services."

Wheeler is now trying to balance the interests of Washington's armies of telecom industry lobbyists with increasingly powerful lobbyists from Silicon Valley and the fast and furious campaigns organised by consumer advocates online.

"He's trying to thread the needle on what is in many ways an impossible task," said Jeffrey Silva, an independent telecom and media analyst.

Wheeler, who was appointed by Obama last year to lead the agency, signaled early on that he preferred light regulation and would encourage new business models such a paid prioritisation. But he's also promised to put consumers first in new "net neutrality" rules, and even asks in his proposal if broadband providers should be subject to FCC regulations as so-called common carriers.

"There is a lot of momentum on this issue, and a few weeks ago I would have said the rules will pass because the other two Democrats don't want to shoot it down outright," said Matt Wood, policy director at Free Press. "But now I'm not so sure."

The telecom giants have equally flexed their muscle in the debate. This week, the chief executives of AT&T, Verizon, Comcast and Time Warner Cable wrote a letter to all FCC commissioners warning against too much regulation. They said the last time the FCC considered reclassifying high-speed internet as a common carrier, their combined market caps immediately dropped by 10 percent on the stock market.

If anyone was supposed to see through the thicket of political and policy challenges it was Wheeler, a former lobbyist for the cable and wireless industry. He is known for his ability to read through the motives of the lobbyists that huddle outside his office every day.

But his success and experience as a lobbyist was during a time before social media could spread leaked policy details and generate collective online rage. Silicon Valley firms and investors in high-tech firms are now better organised and interested in protecting their own profits affected by government policy.

The FCC under Wheeler's predecessor had tried to codify net neutrality. But when the US appeals court overturned the FCC's rules last January, Stanford University law professor Barbara van Schewick, contacted dozens of high-tech firms in Silicon Valley to explain the ruling.

Van Schewick, who directs Stanford Law School's Center for internet and Society, flew multiple times to Washington to discuss the FCC's plans and returned to the Bay Area to warn companies that they needed to pay more attention to events in Washington. She said the FCC's proposal for new net neutrality rules was based on a hodge-podge of legal definitions and warned that Wheeler would allow paid prioritisation online.

In New York, the venture capital financier Burnham and other investors made their own visits to the FCC. They also expressed concerns about the agency's direction in private email listserves, sharing their worries with startups, other investors and policy lawyers in Washington.

Loosely organized, the Silicon Valley and New York contingents were in contact over email and in conference calls. Many individuals protesting the FCC's plan had also helped stage an online revolt against the Stop Online Piracy Act introduced by Congress two years ago.

One of those was Alexis Ohanian, founder of web question-and-answer forum Reddit, who spread word of the FCC's proposal online. He crowd-funded an ad campaign of commuter bus signs plastered across Washington. This week, he hosted a question and answer session with Senator Ron Wyden, on net neutrality.

Ohanian said Obama's stance on the internet was a big reason the candidate won his vote in 2008. "The open internet has had such a dramatic impact on my career and personal life that I can't conceive of a world without net neutrality," he said.

On Monday, Wheeler responded to the protests. He tweaked his earlier proposal with new questions for the public, including if paid prioritisation should be banned. But he still insists on moving forward with rules that permit the practice.

At the heart of the agency's struggle is the thorny question of how it can be an effective regulator of high-speed internet providers with its rules written in an age when cable modem internet was just getting off the ground and most Americans didn't own a cellular phone.

Wheeler has tried to assure critics of his plan that consumers would get a baseline of quality high-speed internet access. Consumers could even benefit from new options for premium services, he's argued.

The FCC chairman is trying to create rules based on the federal appeals court's legal analysis in its January ruling. But as the internet increasingly becomes a necessity for communications and information, consumer advocates say the agency needs to more aggressively rethink its entire philosophy on broadband internet regulation.

"People working on net neutrality wish for a 'third way,' - a clever compromise giving us both network neutrality and no blowback from AT&T, Verizon Comcast and others," said Ammori.

But he warns the compromises posed by Wheeler and others won't work: "That dream is delusional because the carriers will oppose network neutrality in any real form; they want paid fast lanes." 

 - Washington Post

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