An Internet for
Everybody
Ann Arbor, Mich.
LAST week, a federal appeals court in Washington ruled that the Federal Communications Commission lacks the legal authority to tell Comcast not to block certain uses of its Internet access services. This decision has become a rip-the-Band-Aid-off moment for the regulatory agency, forcing it to reconsider its effort to impose “network neutrality” by requiring that Internet access providers treat all content equally.
It also puts a substantial roadblock in the path of the commission’s National Broadband Plan, which proposes to spend billions of dollars to help provide Internet access, rather than phone access, for people in rural areas.
But the F.C.C. needn’t change either strategy. It can regain its authority to pursue both network neutrality and widespread access to broadband by formally relabeling Internet access services as “telecommunications services,” rather than “information services,” as they are called now. All the commission needs to do is prove it has a good reason.
It wouldn’t be the first time that the F.C.C. relabeled Internet access services — and certainly not the first time it addressed the need for equal access. Until August 2005, the commission required that companies providing high-speed access to the Internet over telephone lines not discriminate among Web sites. This allowed innumerable online businesses — eBay, Google, Amazon, your local knitter — to start up without asking permission from phone and cable companies. There was nothing unusual about this legal requirement; for more than 100 years, federal regulators had treated telegraph and telephone service providers as "common carriers," obligated to serve everyone equally.
But under the Bush administration the F.C.C. deregulated high-speed Internet providers, arguing that cable Internet access was different from the kind of high-speed Internet access provided by phone companies. Cable Internet access providers, the commission said, really offered an integrated bundle of services — not just Internet connection but also e-mail, Web hosting, news groups and other services. So the F.C.C. declared that high-speed Internet access would no longer be considered a “telecommunications service” but rather an “information service.” This removed all high-speed Internet access services — phone as well as cable — from regulation under the common-carrier section of the Communications Act.
This was a radical move, because it reversed the long-held assumption that a nondiscriminatory communications network was essential to economic growth, civic welfare and innovation. At the same time, the F.C.C. said that it would retain the power to regulate Internet access providers if the need arose, under another section of the Communications Act.
The Bush F.C.C. hoped that deregulation would prompt greater competition in Internet access services. But a wave of mergers instead reduced it. Prices stayed high and speeds slow. And eventually the carriers started saying that they wanted to be gatekeepers — creating fast lanes for some Web sites and applications and slow lanes for others.
In its decision last week, the appeals court said that the “information services” label given to high-speed Internet access providers means the F.C.C. cannot prohibit companies like Comcast from engaging in discriminatory activities. But if the F.C.C.’s labeling of high-speed Internet access providers undermines its ability to tell them what to do, how can it ensure that consumers get the information they need about real speeds and prices? How can it ensure that basic communications services — which, these days, means Internet access — are widely available?
The F.C.C. has the legal authority to change the label, as long as it can provide a good reason. And that reason is obvious: Americans buy an Internet access service based on its speed and price — and not on whether an e-mail address is included as part of a bundle. The commission should state its case, relabel high-speed Internet access as a “telecommunications service,” and take back the power to protect American consumers.
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