WASHINGTON -- Next month, a wonky government agency will rule on the fate of the Internet. The Federal Communications Commission (FCC) is expected to grant a major victory to net neutrality advocates, a stunning turnaround following years of conventional wisdom to the contrary.
But advocates aren't celebrating yet. Instead, they're watching to see if the FCC will create rules that are strong and enforceable, or that leave gaping holes for telecom and cable companies to drive through. They are also eyeing a Republican-backed proposal that, they say, will undermine a free and open Internet.
For months, the battle over net neutrality has centered on whether the FCC will reclassify consumer broadband Internet as a utility under Title II of the Telecommunications Act. Reclassification would empower the FCC to block Internet service providers, or ISPs, from charging content providers like Netflix more for reliable Internet access -- thereby hampering, for example, a person's ability to quickly and affordably stream "House of Cards." (ISPs maintain that they won't create a second network for faster service.)
FCC Chairman Tom Wheeler has indicated that he supports Title II -- a proposal backed by President Barack Obama -- and it's widely believed that Wheeler will go that route. Republicans contend that such a move would qualify as government overreach, and they have introduced legislation that would essentially gut the agency's authority. That bill's fate is unclear, given that it's unpopular among many Democrats but still makes big net neutrality concessions that telecom and cable companies might not favor.
Regardless, advocates say that Title II authority won't mean much unless the FCC creates enforceable rules and doesn't allow loopholes.
"Right now, the big carriers are simply looking for a loophole," said Marvin Ammori, a lawyer who advises major tech companies and supports net neutrality. He noted that there are multiple loopholes -- like writing exceptions for mobile or specialized services -- that could undermine the whole FCC rule. "They only need one," he said.
One of the potential loopholes Ammori described would be a failure to include "bright-line rules," also known as clear and enforceable standards. In November, Obama asked for bright-line rules banning ISPs from blocking legal content, manipulating Internet traffic speeds and imposing paid prioritization. Advocates say that bright-line rules would include a ban on access fees and discrimination, including in the "last mile" of interconnection, the gateway between an ISP and the rest of the Internet.
Tech startups have argued that without clear rules, they will be forced to defend open Internet principles against telecom and cable companies -- and would likely lose. The blogging platform Tumblr wrote in September that the company "has only two lawyers... [and] cannot afford to engage in what would likely be multi-year challenges against the biggest broadband providers." The organization Y Combinator, which provides seed funding to startup companies, wrote in July that "the startup ecosystem needs a bright line, per se rule against discrimination" as opposed to a "multi-part, totality-of-the-circumstances standard with a case-by-case approach or even a mere presumption against discrimination."
"Title II is necessary but not sufficient," said Evan Engstrom, policy director at Engine, which advocates for startups. "We hope the FCC gets it right right away and comes out with a proposal that includes bright-line rules."
Brian Dietz, a spokesman for the National Cable & Telecommunications Association, an industry group, declined to comment, but he referred The Huffington Post to a January 14 filing that supports some of the positions described by advocates as loopholes. The filing notes that "Title II would threaten to destroy the Internet’s dynamism and reduce broadband investment and innovation."
For now, outside of signaling that he favors Title II, Wheeler isn't tipping his hand on the exact details of his proposal, which will be circulated among commissioners February 5. Speaking at the International Consumer Electronics Show earlier this month, Wheeler said that he and the president are "pulling in the same direction, which is no blocking, no throttling of applications, no paid prioritization, and transparency."
Still, it's not clear how much wiggle room Wheeler's rules will leave. He has said that he favors standards that are "just and reasonable," not simply favorable to the ISPs.
Engstrom told HuffPost that even if the FCC only decides on Title II in this round of rulemaking, and doesn't clarify additional rules until afterward, "that's certainly preferable to the proposals coming out of Congress."
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