Setting the bar for public participation in regulatory affairs
- Janet Jackson’s nipple: 1.4 million comments
- Net neutrality: 1.1 million comments (est)
Realists like Farhad Manjoo at the NY Times have called it “the most important sleep-inducing topic around.” So imagine the surprise when, again last week, public interest in network neutrality hit a crescendo of comments so momentous that it crashed the FCC’s wobbly server setup. That leaves the arcane techno-regulatory idea a mere 300,000 comments behind the flood prompted by the Janet Jackson wardrobe malfunction – dubbed Nipplegate – during the Superbowl half-time proceedings on February 1, 2004.
Timberlake yanks off Jackson’s bra and her nipple is exposed for 9/16 of a second. She’s treated like a whore and cancels appearances, while Timberlake keeps his endorsements and wins awards. “Nipplegate” makes the Guiness Book of Records in 2006 as the most-searched term in Internet history. The FCC attempts to levy a fine of $550,000 on CBS, and pursues its case for seven years. In 2011, the Supreme Court elects not to hear the FCC’s appeal, for the second time. Interest is so intense that Nipplegate prompts some guys to create a site for uploading cool videos, which becomes YouTube.
The Jackson/net neutrality contest comes out even better than portrayed above, since the comparison I’ve made is technically unfair. Nipplegate was part of an “indecency” investigation, and the public comments were “complaints” – not “docketed comments on a policy matter in a rulemaking,” as the FCC told Ars Technica last Thursday.
Still, many of the 1.1 million or so comments submitted by last Friday midnight also seem to be complaints (especially about Chairman Wheeler’s crazed attachment to fast lanes). But they are part of an FCC docketed proceeding, launched February 19, so not “complaints” in the official sense. However you do the math, it’s certainly a lot easier to get outraged over a woman’s breast and get off the couch to bitch about it, than it is to get outraged over whether major edge providers should be allowed, or forced, to compensate the incumbent broadband providers for direct interconnection on the basis of paid, rather than settlement-free, peering.
Paid prioritization is not the culprit: read the Notice
If people get the Internet they deserve, the recent surge of interest in net neutrality might prove to be good for the American consumer (what’s going on with the hapless Canadian consumer I’ll get to later). But as I argued a month ago, the blogosphere has backed itself into a weird corner on these issues. As has the mainstream press that typically argues for the public interest. The NY Times, for example, has kept up its disapproving take on Wheeler’s antics, as in these comments published last week:
Mr. Wheeler’s plan, according to its many critics, would open the door to a two-tier Internet of fast and slow lanes, with affluent companies and households enjoying premium service and everyone else fighting traffic: a death knell for the open Internet and its democratic ethos of “net neutrality.”
Well, it’s true that many of Mr Wheeler’s critics are obsessing about the fast lane/slow lane issue, as in paid prioritization. It’s also very unfortunate that these critics include many of those concerned about the public interest, but who do not seem to have read the actual NPRM (a notice of proposed rule-making fills the same role as a CRTC public notice in setting out the terms of a new proceeding, typically including the various questions the regulator would like the “public” to address).
Here’s why I think the “lanes” argument is seriously off-base and likely to undermine the open Internet case:
- The NPRM was not issued to make the case for a 2-lane model on behalf of Wheeler.
- The NPRM treats prioritization as a marginal idea compared to many others mooted in the document.
- And as it turns out, Americans already have plenty of prioritization deals between the major edge providers and the major ISPs.
Like every FCC publication of its kind, this NPRM is long, exhaustive and exhausting, and I suspect many of the pundits worrying about prioritization haven’t actually read it. The document is 99 pages long and backed up by 361 footnotes, some of which are over 500 words long – and that’s just for the substantive part of 63 pages, before you get to the procedural matter, the dissents, etc. The focus on prioritization isn’t just an over-simplification (some simplification is obviously in order). Here’s what the Notice actually says…
The expression “paid prioritization” appears on 8 pages. Its first appearance is at the end of the Introduction (para 10) – after proposals in favor of both i) a transparency provision to ensure everyone has “the information they need to understand the services they are receiving and to monitor practices that could undermine the open Internet;” and ii) a no-blocking provision “to ensure that all end users and edge providers can enjoy the use of robust, fast and dynamic Internet access.” These are followed by a negative comment about the fast-lane thing:
… [W]e propose to create a separate screen that requires broadband providers to adhere to an enforceable legal standard of commercially reasonable practices, asking how harm can best be identified and prohibited and whether certain practices, like paid prioritization, should be barred altogether [emphasis added].
Next up (para 90), the Commission again asks whether paid prioritization should be barred, along with any practices “that harm competition, consumers, and the free exercise of speech.” On page 44, footnote 250 devotes 300 words to citing several prominent opponents of the fast lane: EDUCAUSE, the Future of Music Coalition, Prof. Barbara van Schewick of Stanford, Free Press and the New America Foundation. Most of these comments are explicitly critical of the fast lane concept, like those of van Schewick, concerned about the creation of
two classes of speakers—those who can pay to receive better treatment (e.g., large, established companies or wealthy individuals) and those who cannot afford to do so—often individuals and groups with unpopular or new viewpoints, like activists and artists.
The final comment in the substantive part of the Notice is on page 69, and it too asks whether paid prioritization should be barred. Then things start to get interesting – in the separate Commissioner statements. In his statement, Chairman Wheeler says plainly he doesn’t like paid prioritization (p.86):
The potential for there to be some kind of “fast lane” available to only a few has many people concerned. Personally, I don’t like the idea that the Internet could become divided into “haves” and “have nots.” I will work to see that does not happen. In this Item we specifically ask whether and how to prevent the kind of paid prioritization that could result in “fast lanes.”
Whether or not you take Wheeler at his word (and many people of apparent good will do not), the problems for the pro-Internet community do not begin and end with this guy. That is made eminently clear in the dissenting statements, which are strangely conspicuous by their absence from the mainstream US debate. Opponents of the big-business, anti-consumer school of thought would do well to pay more attention to what the black hats are saying – who, for the sake of convenience, we’ll call “Republicans.” And that certainly includes the FCC’s two Republican Commissioners.