The FCC's Tom Wheeler now has his loaded gun. Will he use it to defend the free Internet?

The Federal Communications Commission has just granted itself the ability to either protect or condemn the free Internet, depending on how you read the net neutrality rules the agency will consider making law in the coming months. Its top commissioners voted on the proposal today, and despite the dissent of two-fifths of the group and criticism for the speed with which the proposal was rushed down their throats from four of the members, they will move forward.

The rules are meant to protect consumers from an Internet where network providers can improve the performance of certain websites and services, as long as these sites pay the troll living under the cable modem. But the rules have been criticized for failing to address the peering and interconnection deals which offer companies better access to a network if they pay these tolls, like Netflix is doing with Comcast and Verizon. That could divide the Internet into "fast lanes" filled with large companies and "slow lanes" trafficked by basically everyone else.

FCC Chairman Tom Wheeler's response to that criticism has thus far consisted mostly of pleas for people to trust that the agency knows what it's doing, and that argument hasn't changed. Those pleas for trust come despite an established history of failing to protect the free Internet, clear divisions inside the FCC itself, and vague rules that can be interpreted in too many ways. Wheeler has essentially been given a gun on the condition that he and whoever wield its after he steps down are going to do exactly what they promised -- nothing more, and nothing less.

The problem is that no one can agree on what the agency is promising. Some believe that the FCC is working to increase its power and stifle innovation in the broadband market, poking its nose into every deal Internet service providers try to make. Others think that the proposed rules don't go far enough, and that unless it is willing to reclassify broadband companies to be subject to the same laws as telephone companies, it can't protect the free Internet. The rules as they are currently written are wide open to interpretation and abuse.

Wheeler has his loaded gun. Now it's up to him and the rest of the FCC to figure out what he's going to do with it. Will he defend the free Internet, as he's promised since the proposed rules were first leaked? Will he take a few half-steps towards protecting consumers and then falter? Or will he allow ISPs to divide the Internet into fast and slow lanes despite repeated promises to make sure that doesn't happen? After today's vote, the Internet is about to find out which future it's heading towards -- and, depending on who you ask, everything's coming up dreary.

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The Washington Post highlights the crux of Wheeler's argument:

'If a network operator slowed the speed of service below that which the consumer bought, it would be commercially unreasonable and therefore prohibited. If the network operator blocked access to lawful content, it would violate our no-blocking rule and therefore be doubly prohibited.'

The term "commercially unreasonable" is vital here. It's the test by which the FCC is proposing to determine whether an Internet service provider has violated net neutrality. Critics say the term is vague and could allow ISPs to give the FCC the run-around. But Wheeler is saying that although his plan allows a tiered Internet with faster lanes, the floor will be set at whatever service a customer has bought. The Verge reports on the FCC's efforts to either placate or remove protesters:

Well ahead of the meeting, activists gathered outside the FCC offices, some camping for a full week on a small strip between the FCC and a highway. According to Kevin Huang, campaign manager for Fight for the Future, they received a friendly reception; among others, Wheeler and Pai came out to speak with critics. 'I don't think the FCC wants any more bad press,' Huang said. While some protested outside as the meeting began, others filled the main conference hall and overflow rooms, a few loudly denouncing plans to weaken net neutrality. 'We're going to move thorough this process today, and disruption doesn't help getting to the point where the American people can provide input to the process,' said Wheeler, after three people were removed by security as the meeting began.

It will also ask the public whether the FCC should reclassify broadband as a telecommunications service. This will likely dominate debate over the next few months. Classifying broadband as a telecommunications service would open it up to stricter “common carrier” rules under Title II of the Communications Act. The US has long applied common carrier status to the telephone network, providing justification for universal service obligations that guarantee affordable phone service to all Americans and other rules that promote competition and consumer choice. Consumer advocates say common carrier status is needed for the FCC to impose strong network neutrality rules that would force ISPs to treat all traffic equally, not degrading competing services or speeding up Web services in exchange for payment.

Ars Technica details one of the most controversial parts of the FCC's proposal:

On the FCC’s unwillingness to defend the free Internet:

Splitting issues that could affect the foundation of the Internet and allowing companies like Comcast to hamstring the greatest technological innovation in human history — or at least the innovation just behind man-made fire and wine — because the FCC wants to focus on semantics is insane. The Internet isn’t just the series of tubes connecting Comcast’s infrastructure to our homes: it’s the whole damned thing, from the servers operated by companies like Netflix all the way down to the cables in our homes.

Comcast might not be violating net neutrality laws, but it’s certainly violating the spirit behind them. It’s about time the FCC did something about that. On the European Union’s attempts to defend the free Internet:

The legislation is meant to provide access to online services ‘without discrimination, restriction or interference, independent of the sender, receiver, type, content, device, service or application.’ For example, ISPs would be barred from slowing down or ‘throttling’ the speed at which one service’s videos are delivered while allowing other services to stream at normal rates. To bastardize Gertrude Stein: a byte is a byte is a byte.

Such restrictions would prevent deals like the one Comcast recently made with Netflix, which will allow the service’s videos to reach consumers faster than before. Comcast is also said to be in talks with Apple for a deal that would allow videos from its new streaming video service to reach consumers faster than videos from competitors. The Federal Communications Commission’s net neutrality laws don’t apply to those deals, according to FCC Chairman Tom Wheeler, so they are allowed to continue despite the threat they pose to the free Internet. On FCC Chairman Tom Wheeler’s promises to defend the free Internet:

The agency is still ignoring the peering and interconnection agreements that allow companies like Comcast to charge both companies and consumers for access to its network. It’s still manned by people who fought the principles it’s now trying to defend. And it’s still the same agency whose own incompetence threatened the Internet in the first place.

So how about it: do you trust an axe-murderer willing to slaughter the free Internet in broad daylight, or do you think the FCC will do what it’s supposed to and defend the free Internet? Remember that axes leave scars, and that idealism is rarely enough to keep death at bay. On the futility of arguing about what net neutrality really means:

The terms we use to describe these issues directly affect our ability to defend the free Internet. If more people explored the ways that deals like the one between Netflix and Comcast threaten consumers instead of pointing out that they don’t technically violate net neutrality rules, we might start a conversation that the millions of people affected by these deals can understand. If the FCC can change its laws to use the right words, it might be able to protect the Internet.

But if we continue to argue about the meaning of net neutrality to defend the actions of companies threatening the very idea of the free Internet, all we’ve done is split hairs while the Internet collapsed around us. This is a time for action, not a time for pedantic arguments about ultimately meaningless terms. [illustration by Brad Jonas]