In ‘net neutrality,’ FCC is anything but neutral

Eric Mink is a freelance writer and editor and teaches film studies at Webster University. He is a former columnist for the St. Louis Post-Dispatch and the Daily News in New York. Contact him at [email protected] 

By Eric Mink

Next week, the Federal Commu-nications Commission plans to propose new rules that its chairman claims will preserve the Internet as a free, fair and open communications medium for all.

It seems far more likely that the rules will radically distort the medium by tilting Internet functioning even further in favor of the giant technology players.

Essentially, the FCC will propose rules to allow America’s giant Internet access service providers (AT&T, Comcast, Verizon and their ilk) to squeeze payoffs out of America’s equally gigantic Internet content providers (e.g. Google, Apple, Amazon, Netflix) in exchange for preferential online treatment – faster speed, better quality – of their content.

Anybody who doesn’t have access to Google-Apple-Amazon-Netflix-level cash – that is, everybody else –  may find their content caught in Internet congestion as the paid-off stuff zips by in the fast lanes.

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Customers, of course, will have to cough up the added cost of the payoffs, unless content companies absorb them by reducing profits. Best not to hold our breath for the latter. 

A recent deal between content provider Netflix and access provider Comcast offered an ominous illustration of how the new rules might work: 

Toward the end of 2013, Netflix noticed that Comcast Internet subscribers were experiencing serious slowdowns in the speed of Netflix streaming programming, causing frequent interruptions and making it maddening to even try to watch anything via Netflix. 

On Feb. 23 – shortly after the release of the second season of Netflix’s acclaimed original series  “House of Cards” — Netflix and Comcast announced that Netflix would pay an undisclosed sum for the privilege of connecting its signals directly to Comcast computer servers instead of through a third-party service.

In March, Netflix’s average connection speed to Comcast viewers was 65 percent faster than it was in January. 

Technically, the Netflix-Comcast deal isn’t relevant to the FCC’s proposed rules. The rules address “net neutrality,” the principle that all Internet content should be treated fairly and equally by all parties. To the FCC, it applies to the way service providers like Comcast, Verizon and AT&T deliver Internet content to retail end users – individuals, families and businesses.

The Comcast-Netflix deal, on the other hand, is an “interconnection” agreement covering a wholesale transfer of content at the start of the transmission chain, not at the end. Therefore, net neutrality doesn’t apply. 

Netflix begs to differ. It says its deal with Comcast was not a conventional interconnection pact. It says Comcast forced Netflix to cut a deal by degrading performance quality, a charge Comcast denies.

Either way, the distinction will look pretty silly next week when the FCC proposes to allow interconnection kinds of pay-for-play deals at the retail level. Internet service providers will be able to establish different classes of content and charge extra for better speed and quality. 

As arcane as this Internet controversy may seem, I understand that this could be a hugely significant moment in the evolution of the most important communications medium in human history. I just don’t know whom to root for.

Certainly not the Internet access service providers, many of which sell Internet access through the cable TV systems they also own.

Take Comcast: In 2007, as a recent piece by Michael Hiltzik of the Los Angeles Times reminded us, The Associated Press and the Electronic Frontier Foundation discovered that Comcast was secretly interfering with Internet customers who were trying to use a legal, web-based file-sharing service called BitTorrent. Some BitTorrent services competed with some services Comcast also offered. Comcast denied that it was targeting BitTorrent, but the AP and EFF showed that the denial was false, and an FCC investigation confirmed their findings.

In 2012, the FCC concluded that Comcast was misbehaving again by failing to keep promises it made in connection with the company’s acquisition of NBCUniversal in 2011. The commission fined Comcast a pittance and ordered it to keep doing what it had promised to do but hadn’t done.

Meanwhile, Comcast – already the nation’s biggest cable company and largest provider of broadband Internet service – is seeking government approval to acquire Time-Warner Cable for about $45 billion. If the deal goes through, Comcast will control 40 percent of the U.S. broadband business plus the cable systems in 19 of the 20 largest markets.

But my heart isn’t exactly breaking for the content providers.

Two weeks ago, Google, Apple, Intel and Adobe agreed to pay more than $300 million to settle a class action lawsuit by 64,000 engineers. The technology workers charged the companies with secretly promising to not hire each other’s valuable employees. An evidence trail of documents, including e-mails, of all things, backed them up. The arrangement benefited the companies financially, but their collusion denied their workers opportunities to get better jobs.

Is there any reason to believe that companies willing to break federal antitrust law to hurt their own employees will act in the best interests of their customers?

There is not, which underscores the need for responsible regulation of the broadband industry. But I’m not convinced that the FCC is up to the job.

Its half-baked approach to net neutrality, after all, led to two botched legal actions – one involving Comcast, the other with Verizon – that created the present crisis.

Yet the rules FCC Chairman Tom Wheeler is proposing fail to take the only clear path past the legal mess, which is to hold Internet companies to the same “common carrier” standards as telephone companies. The FCC already has the authority to do so, but Wheeler is pushing, instead, a “commercially reasonable” behavior standard that will be all but impossible to define or defend against legal challenge.

I wonder whether the FCC simply has become incapable of protecting the public interest. 

Early in his career, Wheeler spent five years as president of the National Cable Television Association (NCTA), the cable industry’s primary lobbying group. The current NCTA president, Michael Powell, was the FCC chairman from 2001 through 2005.

Wheeler subsequently became chief executive of the Cellular Telecommunications and Internet Association (CTIA), the wireless industry’s lobbying group. A month from now, CTIA will get a new chief executive: Meredith Attwell Baker, a former FCC commissioner.

Among Baker’s distinctions at the agency was her vote Jan. 18, 2011, to approve Comcast’s acquisition of NBCUniversal. Five months later, she announced she was leaving the FCC to become senior vice president of government affairs — for Comcast-NBCUniversal.

This is no mere revolving door; it’s a swirling tornadic cell on the leading edge of a line of severe thunderstorms. And it’s a danger to an Internet that should remain free, fair and open to all if it is to remain innovative and vital for the public interest.