Time to treat the Internet like the infrastructure it is

New York Times News ServiceJanuary 18, 2014 

In less than 20 years, ubiquitous, reliable high-speed Internet access has gone from a vision to a novelty to a fundamental part of the American economy – not to mention our civic, social and personal lives.

Central to this is the principle of net neutrality: that the cables that bring the Internet into our homes should be there for all to use equally. Whether you are a content provider or a subscriber, as long as you pay your bill, it shouldn’t matter whether you use them to send email or connect to Netflix or YouTube.

That, however, may change, thanks to a circuit court ruling in the case of Verizon v. the Federal Communications Commission. The decision deferred to an old FCC determination that telecom cables, the primary conduit for Internet access, are not utilities and cannot be regulated as such, leaving American businesses unprotected from the depredations of a handful of giant Internet access providers.

Service providers can now strike a deal with YouTube to get faster delivery speeds to customers, and Comcast, which owns sizable content assets itself, can use its control of the cables to get an edge over rival content providers.

But rather than despair, this is a moment of opportunity. The court didn’t make its decision because it was opposed to net neutrality, but because the FCC had painted itself into a regulatory corner, having developed a convoluted, contradictory set of rules regarding Internet access over the last decade.

The decision now forces the commission to go back to square one and reverse the industry-compromised decisions that set it on this path in the first place and that have long undermined its authority over this crucial infrastructure.

The problem began in 2002, when Michael K. Powell, the FCC chairman who now heads the cable industry’s trade association, decided to exempt high-speed Internet access from so-called common carriage regulation. Those rules, applied most notably to phone service, bar providers from discriminatory service – everyone who pays a phone bill gets the same quality of service.

But Powell reasoned that Internet access was an information service, distinct from the traditional communications infrastructure, and that competition would be better than oversight at protecting Americans from any abuses by access providers.

It’s a good thing the FCC is staffed by so many lawyers, because it was soon faced with complaints by consumer groups and Internet content providers alleging that companies like Comcast, far from being checked by competition, were using the lack of competition in local Internet service, combined with the lack of oversight, to favor their own commercial interests.

After it was revealed in 2008 that Comcast had interfered with access to certain file-sharing networking applications, the commission performed an about-face, ordering the company to adhere to a new approach for managing bandwidth demand.

This put the commission in a logical bind. It claimed, somehow, that it both repudiated the need for “common carriage” rules and, at the same time, had the power to prevent discrimination by service providers.

Comcast, Verizon and other Internet service providers quickly filed suit. Though the commission fought a valiant fight, defending this contradiction was always a losing battle. The commission first lost following a challenge by Comcast in 2010, after which it recast its net neutrality stance, mandating that service providers not choose winners and losers among providers of online content or require them to pay fees as a condition of carriage.

Verizon then challenged that mandate, and the result was last week’s court ruling. Unlike the 2010 decision, this time the circuit court left little room for the commission to revise its rules yet again.

The court did, however, offer a way forward, if the commission is willing to take it. The agency must revisit and reverse Powell’s 2002 decision, relabeling high-speed Internet access a common carriage service.

That has always been the obvious solution. But for years the commission has refused because its jury-rigged, contradictory stance worked well enough. Now it has no choice.

And it must act, soon. Otherwise, we will have an Internet in which, say, Google can pay extra to give Gmail users faster access to their email than Hotmail users. And Microsoft, which owns Hotmail, will have no choice but to pay more, too, because each Internet service provider has a monopoly, or close to one, over local networks.

In the end, the providers’ slicing, dicing and gouging is great for their shareholders, but not for the country. We’ll end up with a digital replica of pay TV rather than the Internet that has prompted such economic growth and innovation in America.

Without the right administrative label applied to these services, every step the commission takes will be subject to a protracted battle over whether the FCC is impermissibly treating the network providers as “common carriers.” In the meantime, we will be no closer to having the reliable, ubiquitous, neutral, world-class communications infrastructure we need than we are today.

High-speed Internet access isn’t a luxury; it is basic infrastructure, like electricity, clean water and a functioning street grid, that is essential for the free market to function. The FCC can show its strength by having the guts to change its mind.

The New York Times

Susan Crawford is a visiting professor at Harvard Law School and the author of “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age.”

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