Maybe King Solomon got it right with his biblical plan to split a contested baby in two, but Federal Communications Commission Chairman Tom Wheeler is getting significant push back with his own proposal to carve the net neutrality baby in half.
Wheeler's "split the baby" approach to the contentious net neutrality debate, reported on over the weekend by the Wall Street Journal and the New York Times, would effectively reclassify Internet service providers as public utilities akin to the phone companies under Title II of the Telecommunications Act, but only in dealing with large content providers such as Netflix and Google's Youtube. By contrast, the FCC would regulate ISPs less, as they'd fall under that law's more lenient Section 706 provision in their dealings with consumers.
Advocates for net neutrality have been hoping for stronger regulatory oversight of ISPs by reclassifying them as common carriers in all of their business dealings.
Business owners, legal experts and analysts so far give the hybrid proposal a thumbs down. Specifically, the lighter regulatory touch allowed for in dealing with consumers might potentially pave the way for so-called fast lanes and slow lanes in providing them services, some say.
"This 'split the baby' approach fails to accomplish one of the critical requirements of net neutrality because it allows paid prioritization," says David Pashman, general counsel for Meetup, a startup that provides a network for local groups to gather. "We continue to call upon the Chairman and the FCC to use Title II to adopt a strong and clear set of net neutrality rules, including a ban on paid prioritization, so that the Internet remains a vibrant engine for economic innovation."
Pashman, in an open letter to Commissioner Wheeler this summer, criticized any plan that would open the door to paid prioritization and content blocking because it would, among other things, throttle tech startups in their search for venture capital. Without access to fast upload and download connections, startup growth will be slowed, Pashman says, or new technology companies could require more investment capital to pay for faster speeds from ISPs.
Other analysts, such as Larry Downes, project director at the Georgetown Center for Business and Public Policy, an economic policy think tank, say both reclassification under Title II and regulating under section 706 represent overreach by the FCC. More specifically, Downes says, classifying ISPs as public utilities could have consequences that are as disabling as creating fast and slow lanes.
"Those pushing for net neutrality think the world would work better if the Internet was somehow magically transformed into a public utility, like a water or electricity company, with the FCC and state regulators setting rates, overseeing investment, and micromanaging relationships between providers and customers," Downes says, adding the result would be devastating to the smooth functioning of ISP networks.
Additionally, such a reclassification of ISPs as utilities is "legally dubious," Downes says, and is likely to be rejected by federal courts.
The FCC's hybrid approach appears to have had its genesis in a letter from Representative Henry Waxman (D., Calif.) to Wheeler from early October. In it Waxman, who is ranking member of the House Committee on Energy and Finance, writes:
Rather than choosing between section 706 and Title II, I encourage the FCC to consider using both authorities at once. Specifically, I recommend that the FCC consider reclassifying broadband Internet access services as a "telecommunications service" under Title II and then using section 706 to adopt three open Internet protections: a "no blocking" rule, a "no throttling" rule, and a "no paid prioritization" rule.
For their part, technology startups such as Aparmentlist.com, an Inc. 5000 company, aren't pleased either. The apartment rental site depends on high-speed Internet download speeds for its high-resolution photographic and video tours of its offerings.
"I'm generally wary of half-measures that sweep the underlying issue under the rug," says Chris Herndon, co-founder and president of Apartmentlist.com, and a supporter of net neutrality. "The spirit of net neutrality is to eliminate the concept of favoritism altogether, not to better regulate the favoritism."