Despite President Obama’s promise to defend a free and open Internet from corporate control, his appointees to the Federal Communications Commission ended the year by embracing a version of Net Neutrality that advocates accurately refer to as “toothless” and “bitterly disappointing.”
Obama disappointed his base again and again in 2010, with compromises, some would say "betrayals," on issues ranging from health-care reform to banking regulation to tax policy to ending the wars in Iraq and Afghanistan.
But the abandonment of a fight to maintain a free and open Internet—as opposed to one that is defined by the profiteering of telecommunications conglomerates—may well be the most disappointing betrayal, as candidate Obama had been so very clear and uncompromising on the issue.
As a contender for the presidency in 2007 and 2008, Obama identified himself as an ardent supporter of Net Neutrality, declaring that he would he would "take a backseat to no one in my commitment to net neutrality."
Obama really did seem to get it.
"I am a strong supporter of net neutrality," he said during the campaign. "What you've been seeing is some lobbying that says [Internet providers] should be able to be gatekeepers and able to charge different rates to different websites.... so you could get much better quality from the Fox News site and you'd be getting rotten service from the mom-and-pop sites. And that I think destroys one of the best things about the Internet—which is that there is this incredible equality there.... as president I'm going to make sure that is the principle that my FCC commissioners are applying as we move forward."
But Obama’s appointee to chair the FCC, Julius Genachowski, worked with telecommunications-industry lobbyists to develop a “Net neutrality" rule that bears scant resemblance to what candidate Obama promised. And in late December it was approved on a 3-2 vote, with Genachowski and two Democratic appointees (who wanted stronger protections but could not move the chairman) voting for the proposal. Two Republican appointees voted against it, arguing that even this plan goes too far.
The problem with Genachowski’s “fix” is that, while it goes by the name “Net Neutrality,” it is at best “Net Neutrality-lite.” What that means is that, while there will be some FCC regulation, there will not be enough to prevent telecommunications corporations from offering differing qualities of access to websites and applications—an “information superhighway” for those who can pay, a “digital dirt road” for those who cannot.
The rule is so riddled with loopholes that it's become clear that this FCC chairman crafted it with the sole purpose of winning the endorsement of AT&T and cable lobbyists, and not defending the interests of the tens of millions of Internet users.
“For the first time in history of telecommunications law the FCC has given its stamp of approval to online discrimination,” complains Tim Karr, who analyzed the deal for the Save the Internet Coalition, and who warns that the FCC's move threatens to usher in the era of "AT&T's Internet."
Karr, a former executive director of MediaChannel.org who now overseas campaigns for Free Press, the media reform network. is blunt about what happened."The FCC vote is a textbook example of industry capture of a federal agency. Chairman Genachowski gave AT&T veto power over this rule. What he's now characterizing as a "reasonable compromise" looks, to anyone who compares his order to his earlier promises, as a near total capitulation to industry," he says. "By failing to protect the open Internet, Genachowski has put at risk one of the essential needs of any healthy democracy: our right to freely access information, engage in political discourse and govern ourselves."
On specific aspects of the Net Neutrality debate, here are some of Karr’s chief concerns:
1. “Instead of a rule to protect Internet users' freedom to choose, the Commission has opened the door for broadband payola - letting phone and cable companies charge steep tolls to favor the content and services of a select group of corporate partners, relegating everyone else to the cyber-equivalent of a winding dirt road."
2. “Instead of protecting openness on wireless Internet devices like the iPhone and Droid, the Commission has exempted the mobile Internet from Net Neutrality protections. This move enshrines Verizon and AT&T as gatekeepers to the expanding world of mobile Internet access, allowing them to favor their own applications while blocking, degrading or de-prioritizing others.”
3.) “Instead of re-establishing the FCC's authority to act as a consumer watchdog over the Internet, it places the agency's authority on a shaky and indefensible legal footing—giving ultimate control over the Internet to a small handful of carriers.”
Harold Feld, legal director for the group Public Knowledge, calls the FCC decision “a step forward, but hardly more than an incremental step beyond the Internet Policy Statement adopted by the previous Republican FCC."
While Genachowski signaled some time ago that he was going to compromise, the other two Democrats on the commission were more strongly supportive of genuine Net Neutrality. So why did they vote for this rule? Both Clyburn, an Obama appointee, and Copps, a holdover Democratic appointee who has served on the commission since 2001 and has long championed moves to make the media more civic and democratic, were placed in a situation not unlike that of congressional progressives during the health-care reform debate. If they voted “no” to a flawed reform, the fear was that they might end up with nothing at all.
Copps revealed last week that he had seriously considered dissenting – a move that would have aligned him with the Republicans and killed Genachowski’s initiative—but explained that “it became ever more clear to me that without some action today, the wheels of network neutrality would grind to a screeching halt for at least the next two years."
Genachowski did make some improvements in the proposal following negotiations with Copps.
But Copps was blunt in saying that he still has concerns.
"I would have preferred a general ban to discourage broadband providers from engaging in 'pay for priority'—prioritizing the traffic of those with deep pockets while consigning the rest of us to a slower, second-class Internet," the commissioner explained. "I also believe we should have done more to strip loopholes from the definition of 'broadband Internet access service' to prevent companies falsely claiming they are not broadband companies from slipping through. We've made some improvements on the definition, but I still have some worries. I also argued for real parity between fixed and mobile-read wireline and wireless-technologies. After all, the Internet is the Internet, no matter how you access it, and the millions of citizens going mobile nowadays for their Internet and the entrepreneurs creating innovative wireless content, applications and services should have the same freedoms and protections as those in the wired context."
Copps is right to be worried.
And he is not alone.
Noting the hopes that Net Neutrality advocates had for an Obama-administration FCC, Public Knowledge's Feld, says "After such an enormous build up and tumultuous process, it is unsurprising that supporters of an open Internet are bitterly disappointed—particularly given the uncertainty over how the rules will be enforced."