Why the FCC's proposal to reclassify the Internet under Title II is a big win for the Open Internet

Updated February 26, 2015

After a decade of debate, the 3-2 vote February 26, 2015 at the Federal Communications Commission to reclassify the Internet under Title is a win for the consumers, creators, and innovators that rely on the create and share their ideas. We'll continue to be involved in working to preserve the open Internet, but today is a great moment to say congratulations to the millions of individuals and organizations who made this possible.  You can see our post analyzing the impact of implementing Title II below.

You can also read the final rule where New Media Rights' "NMR" comments  was heavily cited in support of the re-classification decision.

Analysis

Recently, FCC Chairman Tom Wheeler proposed reclassifation of the internet as a Title II communications service.  The move gives the FCC the legal authority it needs to preserve and protect and preserve the Open Internet.

This is a good thing.  Here's a TV interview we did explaining what's going on.

KUSI News - San Diego, CA

You can also listen to a more in depth interview here.

Without this reclassification we face the trade-off of improved profits for already hugely profitable companies, in exchange for the internet as we know it. This trade-off is unacceptable to the creators and consumers we serve.

The nature of the internet as an open, accessible network has allowed individuals and businesses to create technologies and services that have transformed our world.  It also has allowed individuals and organizations to speak and communicate with audiences in unprecedented ways. 

What this is, how we got here

Last year right around this time we were in the wake of a big court decision against the FCC, Verizon v FCC.  The result of that decision was that the FCC had little if any authority to ensure that the internet remains a level playing field, and make sure consumers can continue to access content and services of their choice.  It paved the way for potential cableization of the internet, where you might have different tiers of content, rather than a simple platform where anyone and everyone could compete. You might have fast lanes, and preferred services, and slowly but surely the internet we know would disappear, in favor of providing a bit more profit to already very profitable Cable and Wireless companies.

What are the key provisions?

The key provisions of the Title II reclassification proposal help to avoid Internet Access Providers abusing their position as Gatekeepers. Here's a fact sheet the FCC recently released on the proposal.  While we're awaiting the precise language of the proposal, here's our take on the proposal from what's been released so far.

No blocking - broadband providers can't block access to to legal content, applications, services, and nonharmful devices
No Throttling - broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
No Paid Prioritization: broadband providers may not favor some lawful Internet traffic overother lawful traffic in exchange for consideration – in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

Avoids Pay to Play - where established services can simply keep out competitors by paying for fast lanes to consumers.
Transparency - says broadband providers need to be transparent about their practices

Extends all of this to Wireless - This is big, and also exceedinly reasonable.  55%+ web traffic is wireless now, and previous rules created a dual structure where cable / fiber was treated differently than mobile broadband.

ONE BIG CAVEAT  - Broadband providers can engage in reasonable network management.  This makes sense, the specifics of what is reasonable will likely be sorted out through proceedings at the FCC and in court.  This is medium specific, so what's acceptable in terms of network management for fiber, cable, wireless, are different.  However, the FCC seems to aim to keep this exception narrow, because broadband providers must truly be acting for reasonable network management reasons, NOT for commercial reasons.   

Key outstanding questions

1. How this will apply to zero rating situations, such as T-mobile's badly named "music freedom" program?  Zero rating is where broadband providers can exempt preferred services from data caps.  We think this will violate the new rules, but it is an issue that is front and center with the new rules.

2. Potential revamping of Title II?  The FCC's fact sheet does reference a potential rework or modernization of Title II. Reclassification could lose its teeth if any of these changes include diminishing Title II's grant of authority to the FCC to ensure net neutrality.

Going forward

Large broadband providers will resist reclassfication, but the public overwhelmingly supports the principles of net neutrality that reclassification enables the FCC to protect.  It is as important as ever for internet users and organizations to stay vigilant, and make themselves heard, to ensure the FCC preserves the Open Internet 

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