We are all entitled to net neutrality…but the FCC believes some entities are more entitled than others

This morning the FCC decided to approve a controversial proposal on net neutrality which now goes into a four-month period where it is open to public comment. I’m sure they are going to get a boat-load of public comments – and you can bet most of them won’t be polite.

It’s sort of ironic that it was George Orwell (the author of 1984) who wrote in his book Animal House, “All animals are equal but some animals are more equal than others.” Apparently the FCC didn’t get the joke.

In a statement today, FCC Chairman Tom Wheeler said, “I strongly support an open Internet. This agency supports an open Internet although you have seen today that the ability to ensure an open Internet is a matter of dispute.”

Translation: “I believe it is in my best political interest to at least tell people that I support an open Internet and let everyone assume I’m talking about protecting the interests of consumers when in fact I’m protecting the interests of broadband service providers. And when I said ‘the ability to ensure an open Internet is a matter of dispute,’ what I really meant was two of our commissioners (namely Republicans Ajit Pai and Michael O’Rielly) didn’t want to buy in on my plans.”

Ensuring that Americans have access to an open Internet is not a matter of dispute. But if you read Wheeler’s statement that ‘the ability to ensure an open Internet’ to mean ‘the FCC’s ability to ensure an open Internet’ then he is absolutely correct – the current FCC is incapable of ensuring an open Internet. By including a provision that would allow Internet service providers to charge fees to content providers for access to prioritized data traffic says that quite clearly.

It’s a bit like saying ‘as a wolf I will do everything in my power to ensure the safety of these sheep, but I am, after all a wolf and therefore my ability to ensure their safety is a matter of dispute.’

But even if we believe that chairman Tom Wheeler is acting on behalf of the public rather than on behalf of the Internet providers he could have meant that ‘the FCC’s ability to ensure an open Internet is a matter of dispute’ actually meant the FCC isn’t legally empowered to ensure anything.

In 2007, when the FCC tried to stop Comcast from purposely slowing down certain Internet services (BitTorrent in this case) the D.C. Circuit Court of Appeals held that “the FCC failed to justify its exercise of ancillary authority to regulate Internet service providers’ network management practices. Here, the Court did not find a sufficient statutory basis under the Communications Act of 1934 for the FCC’s mandate to regulate the behavior of Internet service providers.”

So maybe the FCC doesn’t even have the power to suggest guidelines (or at least the legal power to enforce them).

It’s interesting to note that in accordance with Telecommunications Act of 1996 and subsequent amendments the FCC outlined six specific goals for itself and one of them included broadband.

“All Americans should have affordable access to robust and reliable broadband products and services. Regulatory policies must promote technological neutrality, competition, investment, and innovation to ensure that broadband service providers have sufficient incentives to develop and offer such products and services.”

In 2008 FCC chairman Kevin J. Martin said that Internet providers, and indeed all communications companies, could not prevent customers from using their networks the way they see fit unless there is a good reason.

We’ll just have to wait and see what the FCC considers ‘a good reason.’